Human Rights Protection and Ius Puniendi: Perspectives from Central East Europe and Latin American Countries (European Union and its Neighbours in a Globalized World, 11) 3031412524, 9783031412523

Citation preview

European Union and its Neighbours in a Globalized World 11

Lukasz Czarnecki   Editor

Human Rights Protection and Ius Puniendi Perspectives from Central East Europe and Latin American Countries

European Union and its Neighbours in a Globalized World Volume 11

Series Editors Marc Bungenberg, Saarbrücken, Germany Mareike Fröhlich, Saarbrücken, Germany Thomas Giegerich, Saarbrücken, Germany Neda Zdraveva, Skopje, North Macedonia Advisory Editors Başak Baysal, Istanbul, Türkiye Manjiao Chi, Beijing, China Annette Guckelberger, Saarbrücken, Germany Ivana Jelić, Strasbourg, France Irine Kurdadze, Tbilisi, Georgia Gordana Lažetić, Skopje, North Macedonia Yossi Mekelberg, London, UK Zlatan Meškić, Riyadh, Saudi Arabia Tamara Perišin, Luxembourg, Luxembourg Roman Petrov, Kyiv, Ukraine Dušan V. Popović, Belgrad, Serbia Andreas R. Ziegler, Lausanne, Switzerland

The series “The European Union and its Neighbours in a Globalized World” will publish monographs and edited volumes in the field of European and International Law and Policy. A special focus will be put on the European Neighbourhood Policy, current problems in European and International Law and Policy as well as the role of the European Union as a global actor. The series will support the cross-border publishing and distribution of research results of cross-border research consortia. Besides renowned scientists the series will also be open for publication projects of young academics. The series will emphasize the interplay of the European Union and its neighbouring countries as well as the important role of the European Union as a key player in the international context of law, economics and politics. Unique Selling Points: • Deals with a wide range of topics in regard of European and International Law but is also open to topics which are connected to economic or political science • Brings together authors from the European Union as well as from accession candidate or neighbouring countries who examine current problems from different perspectives • Draws on a broad network of excellent scholars in Europe promoted by the SEE | EU Cluster of Excellence, the Europa-Institut of Saarland University as well as in the South East European Law School Network

Lukasz Czarnecki Editor

Human Rights Protection and Ius Puniendi Perspectives from Central East Europe and Latin American Countries

Editor Lukasz Czarnecki University of the National Education Commission Kraków, Poland

ISSN 2524-8928 ISSN 2524-8936 (electronic) European Union and its Neighbours in a Globalized World ISBN 978-3-031-41252-3 ISBN 978-3-031-41253-0 (eBook) https://doi.org/10.1007/978-3-031-41253-0 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

In memory of Prof. Zbigniew Hołda

Acknowledgment

This book would not be written without the help of Professor Barbara StańdoKawecka who looks with a positive eye on the comparative idea analysed here. Hopefully, this analysis will find readers and be followed in the future research. Finally, I would like to express my warm gratitude to all Authors in this volume.

vii

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lukasz Czarnecki and Barbara Stańdo-Kawecka

1

Human Rights in the Context of Post-Conviction Preventive Detention in Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ewa Dawidziuk

9

Execution of a Prison Sentence. International Standards: The Local Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Paulina Wiktorska

33

Rehabilitation vs. Retribution/Repression: An Introduction to Systemic Contradictions in the Czech Penitentiary System . . . . . . . . . Jiří Mertl

47

Restorative vs Punitive Approach. Eight Fundamental Principles of Juvenile Delinquency Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elena Mujoska Trpevska and Gordana Lažetić

65

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges for Prison Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Guillermo E. Sanhueza

81

Crisis of the Penitentiary System in Peru in Light of the Fight Against Drugs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Ricardo Soberón Garrido Prisons in Argentina and Challenges of Human Rights . . . . . . . . . . . . . 115 Emiliano Blanco and Mariano Arrigo

ix

x

Contents

Penitentiary System and Community Justice in Mexico . . . . . . . . . . . . . 131 Lukasz Czarnecki Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143 Lukasz Czarnecki

Editor and Contributors

About the Editor Lukasz Czarnecki is an associate professor at the Institute of Law, Administration and Economics, the University of the National Education Commission in Kraków. He holds a Ph.D. in Sociology from the National Autonomous University of Mexico (2012), the University of Strasbourg (2015), and Juris Doctoris from the Jagiellonian University of Kraków (2019). His research interests include comparative and transformative constitutionalism in Latin America and the Caribbean, the rule of law and its relations with inequalities, exclusions, imprisonment, and subjective wellbeing, based on mixed-method research. He is a member of the board of the International Sociological Association RC06 Research on Families (2023–2027) and a member of the Editorial Board of the Oñati Socio-Legal Series, a Journal of the Oñati International Institute for the Sociology of Law.

List of Contributors Mariano Arrigo Institute of Criminology, Argentine Federal Prison Service, CABA, Buenos Aires, Argentina Emiliano Blanco International Correction and Prison Association Latin America, CABA, Buenos Aires, Argentina Lukasz Czarnecki University of the National Education Commission, Kraków, Poland Ewa Dawidziuk Faculty of Law, SWPS University of Social Sciences and Humanities, Warsaw, Poland

xi

xii

Editor and Contributors

Gordana Lažetić Faculty of Law “Iustinianus Primus”, University of Ss. Cyril and Methodius, Skopje, North Macedonia Jiří Mertl Faculty of Humanities, Department of Applied Social Sciences, Charles University, Praha 8 - Libeň, Czech Republic Guillermo E. Sanhueza Loyola University of Chicago, School of Social Work, Chicago, IL, USA Ricardo Soberón Garrido Drugs and Human Rights Research Center NGO, Lima, Peru Barbara Stańdo-Kawecka Jagiellonian University, Kraków, Poland Elena Mujoska Trpevska Center for Strategic Research, Macedonian Academy of Sciences and Arts, Skopje, North Macedonia Paulina Wiktorska Institute of Legal Studies, Polish Academy of Sciences, Warsaw, Poland

List of Abbreviations

AMLO MHJC (Modelo Homologo de Justica Cívica) MASC (Mecanismo Alternativo de Solución de Controversias) USAID (United States Agency for International Development)

Andrés Manuel López Obrador, Mexico’s president 2018-2024 Jednolity Model Wymiaru Sprawiedliwości Obywatelskiej Alternatywny Mechanizm Rozstrzygania Sporów Agencja Amerykańska Rozwoju Międzynarodowego

xiii

Introduction Lukasz Czarnecki and Barbara Stańdo-Kawecka

Abstract This volume examines human rights and ius puniendi in Central East Europe and Latin American countries. The comparative approach represents a challengeable task in a globalized world, where the rule of law in many countries is questioned. Human rights of persons deprived of their liberty in detention or special centers in the case of Poland are at stake. How to guarantee the human rights of persons deprived their liberty? This question will be addressed by contributors coming from Central East Europe and Latin America. This comparative effort will fill the gap at both international and national level, as there are predominately monographs stemming from English speaking countries. In addition, at national level there is a gap to fill with this comparative analysis on how penitentiary systems work.

This book sheds light on some points on the thoughts of professor Zbigniew Hołda (1950–2009). It refers—mostly indirectly—to his ideas developed during academic life course. In his scientific work, he initially dealt with the criminalization of drug crimes and criminology, later he became interested in the issues of executive criminal law and human rights. Professor Zbigniew Hołda was born on 17 March 1950 in Ełk, in North-East Poland. During the 60s his first contact with the Secret Police (SB in Polish) occurred when he was caught during a student demonstration in March 1968. Later in October same year, Zbigniew Hołda began studying law at the Maria Curie-Skłodowska University in Lublin. In 1972, he became an assistant in the Department of Criminal Law and Criminology at the Maria Curie-Skłodowska University. After 6 years, he defended his doctoral dissertation on criminal liability for the use and possession of L. Czarnecki (✉) University of the National Education Commission, Kraków, Poland e-mail: [email protected] B. Stańdo-Kawecka Jagiellonian University, Kraków, Poland e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Czarnecki (ed.), Human Rights Protection and Ius Puniendi, European Union and its Neighbours in a Globalized World 11, https://doi.org/10.1007/978-3-031-41253-0_1

1

2

L. Czarnecki and B. Stańdo-Kawecka

intoxicants according to Polish law, which he prepared under the supervision of prof. Andrzej Wąska. In the following years, he was primarily interested in criminology, and in 1983, together with Zbigniew Welcz, he published the script “Criminology”, in which current theories concerning this field were discussed. In 1980, after the founding of “Solidarity”, Zbigniew Hołda became actively involved in trade union activities, as an advisor and then a member of the Management Board of the “S” Central and Eastern Region. During martial law, in December 1981, he was interned—first in Włodawa, then in Lublin. After his release in 1982, he immediately joined the opposition activities. The stay in prison changed his research interests, he mainly dealt with penitentiary law. In the 1980s, he participated in a penitentiary seminar conducted by Andrzej Rzepliński at the Institute of Social Prevention and Rehabilitation at the University of Warsaw. In 1990, Zbigniew Hołda obtained his habilitation at the Institute of Legal Sciences of the Polish Academy of Sciences on the basis of his work titled “Legal status of a convict serving a sentence of imprisonment”. Soon after, in 1992, he became the head of the Department of Penitentiary Law and Policy at the Jagiellonian University in Kraków. From then, his academic work was divided between the Maria Skłodowska-Curie University in Lublin and the Jagiellonian University in Kraków. He worked on the draft Executive Penal Code in the Executive Criminal Law Group of the Criminal Law Reform Committee at the Minister of Justice from 1989. During 1999–2000 he participated in the works of the Criminal Codification Team at the Minister of Justice, and then—the Criminal Law Reform Commission at the President of the Republic of Poland. In addition, he was a member of the Helsinki Committee, a member and then vice-president of the Helsinki Foundation for Human Rights, a member of the European Committee for the Prevention of Torture. Zbigniew Hołda was a great academician, empowering teacher, human rights activist and lawyer, expert on criminal law, especially in the field of penitentiary law, among others. Gay and lesbian rights organizations honored him with the Tolerance Award for his activities in the field of human rights protection, in defense of sexual minorities. This manuscript will refer to heterogeneity of Holda’s thinking on human rights protection putting emphasis on Ius Puniendi, as relating to the broad area of state powers to criminalise and impose sanctions and punishment. When we talk about Holda’s contribution to ius puninedi, we need to focus on both theory and praxis of legal analysis. Firstly, in the early 80s Holda wrote on overcriminalisation in the criminal law and in the particular context of the criminalization of drug-taking that involved two problems: “the limits of the criminal sanction and the effective measures of drug-abuse control” (Holda 1984). According to Holda, law should distinguish between “dealers” and “users”, and between “soft drugs” and “hard drugs” with regard to criminal responsibility. From the very beginning of his academic research professor Holda focused on criminalization of law, rule of law, human rights, legal education, but from the bottom perspective, contrary to top academia perspective. He insisted on looking at the excluded person from the perspective of prisoner, of anyone deprived of freedom, who suffer arbitrariness,

Introduction

3

where State violates his/her rights (Holda 1988). From the praxis, Holda was pro publico bono lawyer in different precedent cases, such as Bączkowski and others v. Poland (ECHR 2007). The applicants were represented before the Court by Professor Zbigniew Hołda. The ECHR ruled that Polish state violated arts. 11, 13 and 14 of the European Convention, regarding the issue of discrimination against sexual minorities. How the ius puniendi is shaped from the perspective of comparison of some East Central European and Latin American countries? The answer for this question provide papers in this collection which examines how the penitentiary law is changing within different contexts and regulatory regimes. This volume is in line with crossing boundaries to understand new divisions, fragmentations, authoritarianisms in contemporary world. More specifically, there will be a profound analysis of the following countries: Poland, Czech Republic, North Macedonia, Chile, Argentina, Peru and Mexico. Moreover, by comparing Central Eastern Europe with Latin American countries the manuscript will shed light on similarities and differences between them. The volume covers different legal and social contexts. It presents contribution on human rights within changing globalized world. The book is a guide for readers who are concerned with penitentiary law, criminology, human rights in Latin America with the cases of Argentina, Chile, Peru, Mexico, and Central East Europe, with the cases of Poland, Czech Republic, and North Macedonia. Although there are countries form Central Europe and Latin America the volume can have an impact for a wider audience because it applies comparative approach that might be useful for international comparisons. The common thread between all chapters is the interplay between human rights and ius puniendi, though each chapter adopts a distinct methodology and scope such as criminal justice sentencing, sanctions, punishment and execution of sentences, detention conditions, and detainee rights. The current scientific discourse on issues concerning the juvenile and adult criminal policy takes place mainly with the focus on the English-speaking world. In 2015 Franklin Zimring, Máximo Langer and David Tanenhaus noticed in their introduction to the book they edited on juvenile justice systems that comparative analysis in this area had focused mainly on systems in a small number of Western developed nations (Zimring et al. 2015). Much the same can be said of the works devoted to punishments for adult offenders and their legal status in penitentiary institutions. In the last years a significant number of such studies primarily referred to Western countries (Reitz 2018; Simon and Sparks 2013; Turner et al. 2018). Nevertheless, new approaches dealing with new forms of analysis from different perspectives should be implemented (Stańdo-Kawecka and Krajewski 2011; Melossi and Pavarini 2018). This task is necessary in the field of criminology, criminal law, and especially in penitentiary law, where human beings are deprived from liberty and it implies restorative justice (Woolford and Nelund 2020). The reason to address more challenges than ever before stems from two counterweighted challenges. On the one hand, after a disappearance of the East-West division in 1989 the discourse of rule of law, respect for human rights and human

4

L. Czarnecki and B. Stańdo-Kawecka

dignity was established. The new institutional framework include the European Union and the European Convention on Human Rights, among others. On the other hand, the new division appeared—the Global North vs. Global South. To clarify, it is not a geographical division, but a category emerges between Center and Periphery unequal relations (Childs 2015). Human rights practitioners and penitentiary law must contribute reflect the changing patterns of dynamic divisions, especially from the different, non-mainstream regions. Professor Zbigniew Hołda took part in the creation of new penal policy in the post-transformative period in Poland. His engagement was crucial to understand international standards and their implications for creation new penitentiary legal framework in Poland (Hołda 1999). By making this unique contribution of building bridge and filling the gap in research in post-transformative countries of Latin America and Poland we shed light on the new practices in terms of penitentiary and criminal issues never studied before. The book’s structure is divided into ten chapters. The first and last chapters are Introduction and Conclusions. Chapters two to five analysed cases of Poland, Czech Republic, and North Macedonia. Then, Chapters six to nine will focus on cases of Latin American countries i.e. Chile, Peru, Argentina, and Mexico. In the second chapter Ewa Dawidziuk gives an insightful analysis on the structural difficulties in the National Center for the Prevention of Dissocial Behaviour in Poland. The chapter presents the results of research and analysis carried out by the author for the last 7 years in connection with her professional assignments in the Ombudsman Office. It is also based on the analysis of patients’ complaints addressed to the Ombudsman Office, Center’s internal regulations and many discussions held during webinars and conferences that took place on that topic in Poland over the past years. In the third chapter Paulina Wiktorska sheds lights on basic principles of the Polish penitentiary system in light of international and constitutional standards taking into account the problem of law in practice and new challenges for the penitentiary system. The execution of a prison sentence is a difficult challenge in the context of compliance with international standards, including, in particular, guaranteeing human rights. The aim of her study is not an exhaustive and complete discussion of the problem of compliance of the Polish legislation and practice of imprisonment, but only a selection of certain aspects of this issue, which according to the author require reflection and commentary. According to Wiktorska, legal populism, occurring as an international trend, leads to a situation in which empirical research, statistics, expert opinions, scientists and practitioners are unfortunately relegated to the background or ignored altogether. She identifies core problematic aspects of detention conditions in Polish prisons, revolving around overcrowding, ageing population, shortcomings in the practice of conditional release, and the impact of penal populism. In the fourth chapter Jiří Mertl showed that penitentiary system in Czech Republic still suffers from cultural contradictions. These contradictions are based on systemic settings consisting of splitting the system to uniformed and civil personnel where only the uniformed personnel are eligible to take decision-making positions, for

Introduction

5

example CEO of the Prison Service, director of prison etc. The civil personnel are then directed by the uniformed one, which makes paramilitary like organisational culture in the penitentiary system. At the same time, many civil personnel employees have uniformed employment history so they bring repressive culture to the civil positions where the rehabilitative one should play a main role. Drawing on the 89 semi-structured interviews with civil personnel from prisons all over the Czech Republic conducted within the TERAPEUT-VTOS project, he argues that there is a contradiction between rehabilitative and retributive/repressive culture in the Czech penitentiary system, which limits rehabilitative work with imprisoned persons, making them more dangerous after imprisonment, more prone to prisonisation, and more marginalised. In the fifth chapter, Elena Mujoska-Trpevska and Gordana Lažetić discuss the juvenile delinquency prevention system in the Republic of North Macedonia. This chapter identifies and analyzes juvenile delinquency prevention’s fundamental principles since every younger generation is faced with their own rules and dynamic lifestyle. Having in mind the “four D’s” model: diversion, de-judicialization, de-institutionalization and due process, the elaboration and analyzes will contribute toward defining the role and assessing the effectiveness of social, family, educational and other assumptions for the protection of children. The focus will be directed toward the role of the poverty, education, free time and peers influence toward juvenile delinquency. Some of those factors shall be addressed as the primary roots and reasons for the manifestation of youth’s antisocial behaviour. An important issue regarding juvenile delinquency is the stereotype that only children from divorced marriages, one-parent families and children without parental care, manifest troubled behaviour, so the article will offer data and arguments toward avoiding this stereotype when analyzing juvenile delinquency. There is a need to emphasize that the Republic of North Macedonia is defined as welfare and modern country where humane and inclusive social development principles are implemented. At the same time, there is a necessity for taking care of the socially vulnerable categories, including the children at risk. Social policy, which covers all aspects of child protection, is an unavoidable part of the juvenile delinquency protection and prevention policies. National strategic documents on juvenile delinquency prevention will also be analyzed. Within the article, there will be available statistical data, trends, and rates relevant to the topic of interest. In the sixth chapter Guillermo E. Sanhueza sheds light on the challenges in the Chilean prisons. Chile currently exhibits high levels of inequality in a variety of domains, including income distribution; its educational system; the quality and opportunity of healthcare; urban segregation; and an increased number of neighborhood taken by drug lords, among others. This context of rapid, profound changes taken along with a highly-neoliberal socioeconomic context are impacting prison life in terms of their composition, types of crimes committed, causes of crime, the level of violence employed and, of course, the reactions of the public and the security forces to crime, delinquency and punishment. In this regard, human rights in Chilean prisons have also evolved in recent years in many aspects, in comparison to one or

6

L. Czarnecki and B. Stańdo-Kawecka

two decades ago. In some aspects human rights are more visible within the prison system itself (i.e. human rights exist now as part of the official discourse; organizational changes to promote human rights inside the prison system; efforts to improve the training for guards and officers, among others). At the same time, some aspects still remain stagnant, as a result of many possible factors such as the (usual) lack of resources, complications derived from the Covid19 crisis, or the rapid changes in criminological and penal landscape. Based on a variety of sources of information including quantitative data (administrative records and survey information), qualitative reports and literature sources, this chapter will review advances, setbacks and challenges of human rights in Chilean prisons. In the seventh chapter on Peru, Ricardo Soberon Garrido discusses how the Peruvian state face one of the challengeable tasks for the Latin America as a whole—the production and consumption of illicit drugs. Peru is an interesting case on the “war” against drug trafficking that has been implemented in the world for 50 years. At the same time, Peru has many contradictions and tensions that occur in this context of the war against a phenomenon of a profound social and economic nature. The objective of this chapter is to examine the behaviour and trajectory of the Peruvian criminal system and policy based on its treatment of the issue of the production and consumption of illicit drugs in Peru, a country that in the last 20 years is the second world producer of coca leaf, base paste, and cocaine hydrochloride. In addition, to find the hidden reasons behind the formal discourse of fighting the scourge of drugs, which promotes and hides it, to later make visible the consequences that it has had on the behaviour of the Peruvian prison subsystem, the same one that carries serious problems of origin: absence of rehabilitation policies, growing overcrowding, budget deficiencies. In the eighth chapter Emiliano Blanco and Mariano Daniel Arrigo shed light on work and educations among prisoners in Argentina. The authors make a brief description of the influence of critical criminology in the Argentine, its legislation and scope of the postulates of applied criminology. They describe work and education inside prison, how it is conceived and applied. On the other hand, the possibility to apply risk and desistance models in prison treatment in Argentine’s system and the importance of conceiving job training, work of people deprived of their liberty, and education in confinement contexts as key factors in reducing recidivism. Finally, they establish some key points to discuss in further public policy and legislation. In the ninth chapter and in line with the volume’s research question Lukasz Czarnecki discusses the challenges of community justice system in Mexico, a country which shows possible alternatives for a bottom-up change in the area of judicial reform that has impact on penitentiary system. The Community Court (Juzgado Cívico) as a new type of court was established in 2016. The new model responds to the presence of crime that has been in Mexico for at least two decades, as well as the overload of the traditional system, which has resulted in an overburdened prison system. What are the challenges and limitations of justice policy in the context of Community Courts? The conclusion is that the positive effects of the functioning of the new type of court depend on many factors and not only on the

Introduction

7

implemented law, but especially on the knowledge and recognition of specific challenges of the region. Mexico is a socially diverse country, and the success of the Community Court will depend on social and economic aspects that face each Mexican state.

References Childs D (2015) Slaves of the state: black incarceration from the chain gang to the penitentiary. University of Minnesota Press ECHR (2007). Bączkowski and others v. Poland, STRASBOURG, 3 May 2007, https://hudoc.echr. coe.int/eng?i=001-80464 Holda Z (1984) Drug-taking and Polish criminal law. Ann Univ Mariae Curie-Skłodowska 31(4): 67–74 Holda Z (1988) Prawa i obowiązki więźnia: próby systematyzacji (rights and duties of the prisoner. A systematization). Ann Univ Mariae Curie-Skłodowska 35(12):233–246 Hołda Z (1999) Chapter 11. Poland. In: van Zyl Smit D, Dünkel F (eds) Prison labour: salvation or slavery? International perspectives. Routledge Melossi D, Pavarini M (2018) The prison and the factory (40th anniversary edition): origins of the penitentiary system. Palgrave Macmillan UK, London Reitz KR (ed) (2018) American exceptionalism in crime and punishment. Oxford University Press, New York Simon J, Sparks R (eds) (2013) The sage handbook of punishment and society. Sage, Los Angeles Stańdo-Kawecka B, Krajewski K (2011) Problemy penologii i praw człowieka na początku XXI stulecia. Księga poświęcona pamięci Profesora Zbigniewa Hołdy. Wolters Kluwer, Warszawa Turner M, Peacock M, Payne S, Fletcher A, Froggatt K (2018) Ageing and dying in the contemporary neoliberal prison system: exploring the ‘double burden’ for older prisoners. Soc Sci Med 212:161–167. https://doi.org/10.1016/j.socscimed.2018.07.009 Woolford A, Nelund A (2020) The politics of restorative justice: a critical introduction. Lynne Rienner Zimring FE, Langer M, Tanenhaus DS (2015) Introduction. In: Zimring FE, Langer M, Tanenhaus DS (eds) Juvenile justice in global perspective. New York University Press, New York, pp 1–5

Lukasz Czarnecki is an Associate Professor at the Institute of Law, Administration, and Economics, the University of the National Education Commission of Kraków. He holds a PhD in Sociology at the National Autonomous University of Mexico (2012), the University of Strasbourg (2015), and Juris Doctoris from the Jagiellonian University of Kraków (2019). His research interests include comparative and transformative constitutionalism in Latin America and the Caribbean, the rule of law and its relations with inequalities, exclusions, imprisonment, and subjective wellbeing, based on mixed-method research. He is a member of the board of the International Sociological Association RC06 Research on Families (2023–2027) and member of the Editorial Board of the Oñati Socio-Legal Series, a Journal of the Oñati International Institute for Sociology of Law. Barbara Stańdo-Kawecka is Professor of Law and Head of the Department of Penal Executive Law at the Jagiellonian University in Kraków, Poland. She graduated in special pedagogy and law from the Jagiellonian University. At the same institution she obtained her PhD and defended her habilitation thesis. Her main research interests focus on criminal policy, juvenile law, prison systems and penitentiary policy. She took part in several international research projects concerning

8

L. Czarnecki and B. Stańdo-Kawecka

juvenile justice, restorative justice and prison systems. Her key publications include: chapters on long-term prisoners in Poland (in Long-Term Imprisonment and Human Rights, 2014), chapters on juvenile justice system in Poland (in Juvenile Justice in Global Perspective, 2015; International Handbook of Juvenile Justice. Second Edition, 2017) and the book Polityka karna i penitencjarna między punitywizmem i menedżeryzmem (2020).

Human Rights in the Context of Post-Conviction Preventive Detention in Poland Ewa Dawidziuk

Abstract The chapter presents the legal bases of post-conviction detention in Poland so the Act of 22 November 2013 on dealing with persons with mental disorders posing a threat to the life, health or sexual freedom of other people called Dangerous Persons Act. It specifies the reasons for the adoption of that legal act but also the procedure of placement in the National Center for the Prevention of Dissocial Behaviour (Center in Gostynin), where post-conviction isolation is conducted. Moreover, it refers to the procedure of release from that Center as well as transition to another entity such as prison, psychiatric institution or social care home. Each of these points indicates practical problems with the application of the Act. The main part refers to the problems with respecting the human rights of patients of the National Center for the Prevention of Dissocial Behaviour. The author gives the examples of persons who are deprived of liberty there, presents up-to-date statistics on the number of patients, cases brought by them in courts and the number of people who may be referred there in the light of the wide subjective scope of the Act. The chapter describes the living conditions of the Center in Gostynin showing that it’s overcrowded, there is no minimum living space, the right to respect for the private and family life is violated. Internal regulations limit the constitutional and conventional rights of patients of the Center. The current shape of the Center cannot be accepted. To guarantee full respect for human rights, changes are required in many areas of the functioning of this place. Finally, it indicates the most important legal gaps in the Act of 22 November 2013. Problems that emerged during the whole period of the Center’s existence and the use of the Act give sufficient material to identify them. Legal regulations that refer to post-conviction preventive detention in Poland must be comprehensively changed taking into account the humanitarian treatment and respect of human rights.

E. Dawidziuk (✉) Faculty of Law, SWPS University, Warsaw, Poland e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Czarnecki (ed.), Human Rights Protection and Ius Puniendi, European Union and its Neighbours in a Globalized World 11, https://doi.org/10.1007/978-3-031-41253-0_2

9

10

E. Dawidziuk

1 Introduction Working in the Polish Ombudsman Office, the author had the opportunity to handle the Act of 22 November 2013 on dealing with persons with mental disorders posing a threat to the life, health or sexual freedom of other people (‘Act’ or ‘Dangerous Persons Act’ or the 2013 Act) from the very beginning of its existence and on various grounds: she prepared the motions directed by the Ombudsman to the Constitutional Tribunal or amicus curiae in three ECtHR cases, written interventions directed to the authorities, visited the National Center for the Prevention of Dissocial Behaviors in Gostynin (‘NCPDB’ or ‘Center’) numerous times, met with its employees and patients as well as with the judges of civil divisions who adjudicated on the basis of this Act. Taking the above into account, the chapter presents the results of research and analyses carried out by the author for the last 9 years in connection with her professional assignments in the Ombudsman Office. It is also based on the analysis of patients’ complaints addressed to the Ombudsman Office, Center’s internal regulations and many discussions held during webinars and conferences that took place on that topic in Poland over the past years. The comparison of places of postconviction isolation made in this article is based on material gathered during study visits that were conducted by the author in 2018 (Rosdorf in Germany) and 2019 (Zeeland and Nijmegen in the Netherlands).

1.1

Legal Basis of Post-Conviction Detention in the Polish Legal System

The Act of November 22, 2013 on dealing with persons with mental disorders posing a threat to the life, health or sexual freedom of other people has created measures that were not known before in the Polish legal system and that are called post-conviction preventive detention. The origin of this Act is related to the amnesty law of 1989 that provided, among other things, that the death sentences imposed, but not executed, before its entry into force would be changed into the sentences of 25 years of imprisonment. It wasn’t the life imprisonment because the 1969 Penal Code did not provide for it.1 Until 2013, no one thought about the consequences of such legal solutions. Because it was the time when 25-years of imprisonment was coming to an end which meant that a few the most dangerous criminals might be released,2 the project of the 2013 Act started to be prepared in the Ministry of Justice. The project was widely commented and criticized by the Polish Psychologists’ Association,3 Polish

1

See more detailes: Szwed (2021), pp. 3–4. See: Płatek (2019). 3 Gierowski and Paprzycki (2014). 2

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

11

Psychiatric Association,4 Helsinki Foundation for Human Rights.5 Nevertheless, the law was passed. The practice of its application in the following years has shown how many of these critical remarks were correct. The 2013 Act created a new type of total institution in Poland,6 focused on the therapy of patients placed in the Centre, while pursuing a protective purpose. As emphasized by Długosz, the legislator thus introduced a new institution of deprivation of liberty into the Polish legal system, which at the same time brings together criminal law elements of protective measures and compulsory psychiatric detention.7 The Dangerous Persons Act can be applied to persons who have fully served a sentence of imprisonment. If the court finds that a person poses a ‘high risk’ to society, it may order preventive supervision, which is a freedom-restricting measure carried out by the police. In the case of an opinion about a ‘very high risk’ to society, the court8 may deprive the liberty for an indefinite period of time by placing the person in the National Centre for the Prevention of Dissocial Behaviour—a health care institution that provides treatment for mental disorders such as intellectual disability, personality disorders or disorders of sexual preference (according to article 1 of the Act). It must be underlined that it’s not the institution for people who suffer with mental illnesses but for those with above indicated mental disorders. Moreover, the scope of the Act involves people who served the sentence in the therapeutic unit of the penitentiary institution, but the Act does not precise how long the inmate should serve the sentence in such unit. The last but not least, the Act says that it applies to persons diagnosed with mental disorders that are of such a nature or such severity that there is at least a high probability of committing a prohibited act with the use of violence or the threat of its use against life, health or sexual freedom, punishable by a maximum term of imprisonment of at least 10 years. During the legislative process of the Act, human rights institutions raised concerns that the proposed solutions might violate constitutional and international human rights standards. Such very broad scope of the Act was criticized by the Polish Ombudsman who filed the motion to the Constitutional Tribunal contesting, among others, the above mentioned article 1 of the Act because of the very broad subjective scope. The Helsinki Foundation for Human Rights also submitted an amicus curiae brief in the proceedings before the Constitutional Tribunal. In spite of that the Constitutional Tribunal of the Republic of Poland, in its judgement of 23 November 2016,9 ruled that the Act is substantially consistent with the Polish 4

See also: Heitzman (2013). See more: https://orka.sejm.gov.pl/WydBAS.nsf/0/C9C9D2ECF42 7AB48C1257C3900505560/$file/ppc_2-2013.pdf (access: 12.04.2023). 5 Statement by the Helsinki Committee in Poland and the HFHR Management Board, https://hfhr.pl/ upload/2022/01/20130508stanowisko-kh.pdf (access: 3.03.2023). 6 Kukliński (2022), pp. 165–168. 7 Długosz (2015), pp. 83–84. 8 Dawidziuk (2019), pp. 223–224. 9 Signature K 6/14, https://ipo.trybunal.gov.pl/ipo/Sprawa?&pokaz=dokumenty&sygnatura=K% 206/14. Constitutional Tribunal of the Republic of Poland, judgement of 23 November 2016, case no. K 6/14, published in OTK ZU A/2016, item 98 (n.d.).

12

E. Dawidziuk

Constitution.10 Nevertheless, the analysis of the functioning of the Center over the last 9 years allows to state that the performance of preventive detention in Poland after serving the sentence is unconstitutional, violates human rights and requires urgent legislative and concept changes.11 Above mentioned broad scope of the Act leads to the increasing number of people who are deprived of liberty in the NCPDB. There were 91 patients as of 8 March 2021,12 86 as of 13 April 202213 and 97 as of 9 September 2022.14 In May 2023, this was already 100 patients.15 The author dares to state that it is easy to be deprived of liberty within post-conviction isolation in Poland. A short stay in the therapeutic unit of the penitentiary institution is enough for the prison director to formally start the procedure before the civil court, that may finally deprive a person of liberty within the Center. The director’s fear that something tragic may happen after the inmate leaves a prison may push him or her into starting the procedure for recognizing a person as posing a threat to society. It is true that the director of the penitentiary institution only initiates proceedings under the 2013 Act and finally the civil court decides. However, in practice it should only apply to persons who actually pose a very high risk due to the presented mental disorders. When the procedure starts the court appoints experts, but the quality of expert opinions varies, which has been discussed in Poland for years. Sometimes it is difficult for them to assess whether there is a high or very high probability of committing a prohibited act, also because they use different tools when drawing up opinions for courts. One expert psychiatrist uses HCR and SAPROF (risk assessment tools) and the other do not. Also sexologists and psychologists use a variety of diagnostic tools. During the meetings with civil judges the author has also heard that it is difficult to find an expert who would like to issue an opinion on the basis of the Dangerous Persons Act and would be able to prepare it in a short time.

10

See more detailes in: Bocheński (2016). Płatek (2020). 12 Report of representatives of the National Preventive Mechanism on the revisit of the National Centre for the Prevention of Dissocial Behaviour in Gostynin, conducted on 8–10 March 2021, available on the Ombudsman website: www.rpo.gov.pl. 13 Information provided within the Ombudsman’s amicus curiae, https://bip.brpo.gov.pl/pl/content/ rpo-kozzd-pacjenci-etpc-skargi-amicus-curiae. 14 Data provided during the scientific conference held on 9 September 2022 in Warsaw at the Ombudsman’s Office. The webcast is available on the Ombudsman’s youtube channel: https:// www.youtube.com/watch?v=PBB4JF7fl7I. 15 Data provided by the NCPDB to the staff of the Ombudsman’s Office, which continuously monitors the situation at the Centre from a human rights perspective. 11

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

13

2 National Centre for the Prevention of Dissocial Behaviours 2.1

Placement in the Center

In light of article 9 of the Act, if the psychiatric and psychological opinion issued in the course of the execution of imprisonment on the health of the person referred to in article 1, the director of the penitentiary institution shall apply to the competent civil court for the recognition of the requested person as a person posing a threat to the society. The application is accompanied by an opinion, as well as information about the results of the therapeutic programs used so far and the progress in rehabilitation. Then, pursuant to article 14 (3) of the Act, the court decides to place a person posing a risk in the Center, if the nature of the identified mental disorders or its severity indicate that it is necessary, due to the very high probability of committing a prohibited act with the use of violence or a threat to use it against life, health or sexual freedom punishable by a maximum term of imprisonment of at least 10 years. In order to make such decision the court appoints two expert psychiatrists, and in cases of persons with personality disorders also an expert psychologist, and in cases of persons with disorders of sexual preferences—also an expert sexologist or certified sexologist psychologist. Based on this provisions, till now the courts have detained 100 people in the Center in Gostynin and Czersk.16 Each of them has a different history. However, it is possible to indicate a few cases that raise objections as regards the placement procedure. First of all, we have a person in the NCPDB after serving a sentence of 25 years of imprisonment for murder. Nobody within the prison saw the necessity to involve him in the therapy for 25 years. However, after the Dangerous Persons Act entered into force, the prison service decided to initiate the proceeding from this Act. To make it possible he had to serve the sentence within the therapeutic unit. He was transported to that unit for the last month and two weeks of his 25 years of imprisonment. The criminal court to which the director of the prison applied before his transportation to a penitentiary facility with a therapeutic unit applied a precautionary measure in the form of electronic control of the place of stay and the obligation of therapy. In turn, the director of the institution where the therapeutic unit is located, applied for placement in the Center. Two procedures were launched against the same man—one from the Criminal Code and the second of the 2013 Act based on the Civil Procedure Code. This example shows that experts appointed to assess disorders of the same man, in two courts, make divergent assessments, and

16

As of 13 April 2022, there were 86 patients in the facility in Gostynin (with a regulatory capacity of 60) and 11 patients in the Czersk (with a capacity of 40)—information provided on the Ombudmsna’s website: https://bip.brpo.gov.pl/pl/content/rpo-kozzd-pacjenci-etpc-skargi-amicuscuriae (access: 15.03.2023). But in May 2023 the Ombudsman received the information about 100 persons deprived of liberty within the Center.

14

E. Dawidziuk

this results in different measures. This man is still deprived of liberty in the NCPDB but at the beginning he was there together with electronic bracelet (the electronic surveillance system). After this story the prison service admitted that the new legislation concerning preventive detention forced them to better analyze who might be dangerous for the society after leaving the prison and they were sent to therapeutic units. Then the Director General of Prison Service also recommended that applications to the court should be submitted 8 months before the end of the sentence. The Ombudsman, listening to the judges’ voice and seeing practical problems, proposed to do so even 12 months before the end of the sentence. The heads of therapeutic departments of prisons emphasize, however, that the information provided to a prisoner about the application by the director of the penitentiary institution for recognition as a person posing a threat makes it difficult to conduct therapeutic interactions. Apart from the case mentioned above, there were two more times when people recognized by the court as dangerous were placed in the NCPDB with mobile supervision (electronic bracelet) due to the application of a double procedure— post-penal isolation was adjudicated by the civil court, followed by a security measure in the form of electronic control of the place of stay ruled by a criminal court. This double procedure causes a financial burden for the state treasury because of conducting two cases in two different courts. Besides it has no sense to use the electronic control towards the person who is deprived of liberty in the Center. Such cases indicate a systematic problem, the lack of certain information in the IT systems of courts, but also a double application by directors of penitentiary institutions. Even if these are isolated cases, they should be completely eliminated. Finally, in 2022 an amendment to the Criminal Executive Code was passed, allowing immediate downloading of electronic bracelets to individuals deprived of liberty on request of the director of this institution.17

2.2

Transfer from the Center to Another Place of Isolation

The Dangerous Persons Act does not refer to the possibility of changing the place of isolation from the NCPDB to another entity such as prison, psychiatric institution or social care home. As was mentioned, there are patients against whom the courts have judged an absolute penalty of deprivation of liberty during their stay in the Center and they were transported to prisons in order to serve the sentence. The process of therapy was interrupted in spite of the fact there is still a gap in legal regulations on what has the priority—the treatment in the NCPDB or the imprisonment. The same situation will

17

See: new provision of article 43ra of the Code introduced by the Act of 5 August 2022 amending the Act—Executive Penal Code and certain other acts, Journal of Laws 2022, item 1855, https:// isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20220001855.

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

15

be with the dilemma on what should be used first—deprivation of liberty in Gostynin or Czersk or the precautionary measure especially the stay in a psychiatric institution. There is no doubt this problem should be precisely resolved in the legal act. Now, it’s not regulated but criminal courts have decided that serving the penalty of deprivation of liberty has priority. It’s worth noticing that two man were sent to prisons in order to serve short-sentences. In one case it was 4-months of imprisonment and in the other one 5-months.18 After serving sentences, they came back to the NCPDB. New assessment—whether there is still such necessity—was not conducted by the court. The prisons did not prepare any opinions of psychologist or therapists. The only documents handed over to the Center were medical records. However, the two other patients were transported from the NCPDB to prisons in order to serve long-term sentences (in one case it’s nearly 12 years of imprisonment).19 Taking this into account the legal act that refers to the post-penal isolation should describe the rules of the proceeding at the end of serving the sentence. Besides it may lead to dangerous situation when a patient of the Center, trying to get out of this place, commits a crime. As of 2022, there are currently two women residing in the Center. However, it’s not clear from the legal provisions whether women can be housed together with men in this facility. Different countries have varying practices: for instance, in Germany, they’re always separated, while in the Netherlands, individuals of different sexes may be placed in a TBS or a long stay psychiatric center. For many years, only one young woman was held at Gostynin in Poland until December 2021, when a second woman was placed there. In practice, the woman stayed in a single room equipped with a bathroom facility located in the first ward, where living conditions were better. The woman was alone in her room from the start of her stay in the Center in 2016. The media has reported20 and the director of the NCPDB has stated that the woman has a mental illness.21 Nonetheless, the court has not yet found sufficient grounds to release her from the Center and place her, for instance, in a social care home for individuals with mental illnesses. On the base of this case another legal gap was identified. Namely, the regulations do not allow the patient to be transferred to a psychiatric facility, especially where security measures are carried out, and thus there are appropriate technical and protective safeguards. Such regulations are needed. It may happen that the court makes a mistake and a mentally ill person is deprived of liberty in the Center or a mental illness becomes apparent during many years of stay in such place of isolation. 18

The information was received by the author during her visit in the NCPDB. Dawidziuk (2020), pp. 35–37. 20 Szwertner J, Reportage ‘The Good and Evil Janinka. Why the state has failed both’, https:// wiadomosci.onet.pl/tylko-w-onecie/osrodek-w-gostyninie-bestie-i-janina-reportaz-baczynskiego-ischwertnera/hl7nc5c (access: 18.05.2023). 21 More information on that case can be found: Report of representatives of the National Preventive Mechanism from the visit of the National Prevention Centre in Gostynin, on 18–20 February 2019, p. 4. 19

16

E. Dawidziuk

It is worth noting that pursuant to article 14 (4) of the Act, preventive supervision and placement in the Center are adjudicated without specifying a date. It can be assumed that some people will spend their entire live in such a place, hence the legislator must also provide for the rules of transferring them to a social care home or to a psychiatric hospital, depending on which place is most appropriate for a particular person. Currently, the Mental Health Protection Act does not mention the director of the NCPDB among entities entitled to apply for placement in a social care home. The civil court decides on compulsory placement in such place at the request of the social assistance center. Also the head of a psychiatric hospital, if the person staying in it is incapable of independent fulfillment of basic life needs and requires constant care and nursing, but does not require further treatment in this hospital, may apply to the court for compulsory placement in a social care home. The director of the Center is not an authorized entity because the NCPDB is not a psychiatric hospital, but a medical entity providing therapy. So it’s another legal gap that should be filled in during the legislative process. It should be noted that it was only in 2021 that the director of the Center applied to place three patients in a social care home. He also made a list of twenty patients who, in his opinion, should not be isolated in the NCPDB.22 This emphasizes even more the problem of placing people in this place too frequently. Among them there are people who, after leaving the prison, started families, worked and complied with the legal order, and yet the court decided to deprive them of liberty—indefinitely—in the Center.

2.3

Release from the Center

According to article 46 of the Act, at least once every 6 months, the court, based on the opinion of a psychiatrist and the results of therapeutic proceedings, determines whether the further stay at the NCPDB is necessary. Every 6 months, the head of the Center sends to the court an opinion of a psychiatrist on the health condition of the person posing a threat and on the results of the therapeutic procedure. He is obliged to send such an opinion without delay if, due to the change in the health condition of that person, he considers that further stay of a patient at the Center is not necessary. A note to the case file is made of the findings. To date, this provision has not been amended, even though the Constitutional Tribunal has ruled23 that it is inconsistent with the Constitution of the Republic of 22 Information presented during visits in the Center, conducted by the author. It was also presented by the Vice Direktor of the NCPDB during scientific conference that took place in the Polish Ombudsman Office on 9 September 2022, on 9 September 2022, https://www.youtube.com/watch? v=PBB4JF7fl7I. 23 Signature K 6/14, the Tribunal declares that article 46(1) of the Act, in so far as it provides for the preparation of an opinion on the necessity of continued stay in the Centre by only one psychiatrist, is incompatible with article 41(1) in conjunction with article 31(3) of the Polish Constitution.

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

17

Poland to the extent that it provides for only one psychiatrist at the stage of dismissal. It should be the same team of court experts that is required at the stage of the placement proceedings in the Center because it strengthens the procedural guarantees of the convicted person who is the subject of a request for placement in the Centre or the application of preventive supervision. The amendment to this provision should also provide for the right of a patient of the NCPDB to be heard by the court that decides about his further deprivation of liberty. Moreover, it should provide for the obligatory participation of a defense lawyer, a public prosecutor and be decided on a three-persons composition of the court. The decision to extend the stay in the Center should take the form of a court order, that can be attacked, not the notes to the case file (as provided for in the Act). Now, the procedure violates the basic principles of deprivation of liberty and does not contain the required procedural guarantees. Since 2013 ten people have been released from the Center,24 but at the same time the preventive supervision was ruled towards this men together with the necessity to take part in therapy. So far there are no grounds to refer these persons to the Center again. However, according to the legal regulations (article 21 of the Act) the court may, at the request of the police commander who exercises preventive supervision or ex officio, decide to place a person posing a risk in the NCPDB, to whom preventive supervision has been applied, if the person evades the obligation to undergo therapeutic procedures or from obligations resulting from the preventive supervision exercised over them. As the patients of the Center say, the release of the first patient gave them hope that they could get out of this place. However, the system is accepting new patients and there are still a number of patients for whom the director of the facility provides a positive opinion on their release, who still have their stay in the NCPDB prolonged.

2.4

Patients of the Center

Initially, it was expected that a small group of people would be placed in the Center, mainly those who were sentenced to the death penalty, which was then changed, under the Amnesty Act of 1989, to a sentence of 25 years’ imprisonment. The first patient M.T. was situated in the NCPDB at the beginning of 2014. He was the man whose criminal story caused the creation of post-conviction isolation in Poland. At that time it was obvious that he and the other inmate L.P. are persons covered by the provisions of the Dangerous Persons Act. However, at the time of passing the Act, nobody knew exactly how many people could potentially be 24

There is the information about one relead person as of 8 March 2021 in the Report of representatives of the National Preventive Mechanism on the revisit of the National Centre for the Prevention of Dissocial Behaviour in Gostynin, conducted on 8–10 March 2021. However the NCPDB presented information to the Ombudsman Office that in May 2023 these were 10 people released in total.

18

E. Dawidziuk

covered by the provisions of the new law. Soon the number of patients started to increase. Now it’s 100 people deprived of liberty who have committed all sorts of crimes.25 These are not only people who have committed brutal murders in the past, for which they served a sentence of 25 years. Among them there are also people who have committed assaults, the offense of assault with fatal consequences or crimes against sexual freedom such as rape and submission to other sexual activity, also against minors. They are in different age. The youngest patient is 31-years at the moment, the oldest are more than 70-years old. Some of them receive disability pensions, retirement pensions or are financially supported by their families. Others have no outside help. The first patient M.T. is not in the Center any more as he’s serving the long-term sentence in the penitentiary institution for crimes committed prior to his admission to the NCPDB and for a crime committed during his stay there. During the author’s interviews with the patients, many times it was possible to hear that they blame him for creating the need to pass the 2013 Act and the existence of the therapeutic institution.

3 Living Conditions in the Center 3.1

Center’s Capacity and the Actual Number of Patients

As it was mentioned above there are already 100 patients who were deprived of liberty in the NCPDB in spite of the fact the ordinance of the Minister of Health on the National Center for the Prevention of Dissocial Behaviors provides for a capacity of 60 places in Gostynin and 40 places in Czersk. This executive act to the Dangerous Persons Act relates directly to the living conditions. It was changed twice in order to adjust the provision specifying the number of persons in the living rooms to the changing realities and the increasing number of patients. Originally, the provisions of the ordinance provided for single rooms, then for double rooms, and now it says generally about bed rooms intended for patients of the Center. As of December 31, the number of patients of the Center in individual years was: 2014—3, 2015—19, 2016—33, 2017—44, 2018—65, 2019—75, 2020—91, 2022—97, while in May 2023—100.26 This increasing number of people deprived

25

According to the information provided during the scientific conference on the issue of preventive detention, entitled ‘Cases before the Strasbourg Court concerning the National Centre for the Prevention of Dissocial Behaviour’ held at the Ombudsman’s Office on 9 September 2022, six patients were released from the Centre, only preventive supervision was applied to them. 26 The statistics were sent by the Director of the NCPDB to the Ombudsman Office within its correspondence regarding the living conditions. The visit reports conducted by the NPM and the Ombudsman representatives in 2014, 2015, 2017, 2018, 2019, 2020, 2021, 2022, also include information about the number of patients present on those specific days. These reports have been published on the official website of www.rpo.gov.pl. The number of final decisions of the civil

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

19

of their liberty within post-penal isolation shows that as early as 2018, the authorities should have taken urgent measures to create appropriate living and therapeutic conditions for other people considered by courts as posing a threat to society. This is particularly important in the context of the statistics on the number of persons serving sentences in therapeutic wards of prisons, as the initiation of the procedure under the Act can referred only to them. As of 30 March 2023, the number of such convicts was 5142 persons.27 Living conditions of such place as the NCPDB should be organized in a way that ensures respect for dignity but also for the right to privacy and intimacy. The courts, when referring other people to the Center, do not consider these issues. It’s not their role. At the same time, the state authorities have remained passive for the last few years, despite the fact that in Germany or the Netherlands a single room is a standard for a person who is isolated from society as posing a threat. Large rooms in the Center, with bunk beds, are becoming more and more populated. Until 2022, there were rooms in the second, third, and fourth ward accommodating 8–10 people. However, after the opening of the second building, each room now houses 5–6 individuals. In contrast, the rooms in the first ward are dedicated to 2–3 patients, as they are quite small. In the facility in Czersk rooms are for 3–4 persons. The survey of the Center in Gostynin wouldn’t be complete without describing the walls painted in pink, purple or red colours and decorated with a large number of pictures up to the ceiling, that attract the attention. This may seemingly make a good impression, but is very overstimulating. In the Czersk building the wall colours are already subdued. In German and Dutch institutions for people who pose a threat, the colours of the walls are also bright and unadorned. Only residential rooms can be decorated by patients at their discretion. The rule is that you can arrange your own room and it’s single. Furthermore, in Gostynin only a small vent window opens from the top, which means that in summer there are high temperatures inside, and there is no way to ventilate the rooms. In Czersk, the windows can be opened but there are grilles and blinds covering the entire windows on the outside. It’s impossible to create therapeutic conditions in such an overcrowded place. The National Preventive Mechanism wrote critical report about the therapy that is conducted in the Center.28

courts that have imposed deprivation of liberty in the NCPDB is also presented by the Prison Service, in relation to the fact that it is the directors of the penitentiary units who initiate the recognition of a person as posing a threat to society. See: https://bip.brpo.gov.pl/sites/default/files/ Informacja%20SW%2C%2017.03.2020.pdf. 27 Ministry of Justice, Central Board of the Prison Service. Monthly statistical information, March 2023, https://sw.gov.pl/strona/Statystyka. 28 Report of representatives of the National Preventive Mechanism from the visit of the National Prevention Centre in Gostynin, on 18–20 February 2019, especially pp. 29–33.

20

3.2

E. Dawidziuk

The Reaction of the Authorities to Living Conditions

Unfortunately, no reaction took place to conditions violating dignity and not allowing the appropriate conduct of therapeutic intervention until February 2021. Then the decision of the Center’s director forced the relevant authorities to prepare the new places for people treated as dangerous. It’s because he refused to admit two people referred to the NCPDB under the court’s decisions. Stressing the need to ensure security inside the facility, the director stated that there are no more places in the Center in Gostynin which is overcrowded. As a result of such situation, on April 15, 2021, the Sejm of the Republic of Poland adopted an amendment to the Dangerous Persons Act (Sejm Print 1071). It provides for the borrowing of buildings owned by the prison service and thus the creation of a temporary place for detained persons considered by the court to pose a threat to society. It also says about the delegation of prison service officers who will temporarily take over the function of security guards in these buildings. As a result the second building of the Center was opened in March 202229 in the small town Czersk.30 During the session of the Parliamentary Committee on Justice and Human Rights, it was argued that the purpose of the amendment is to create the possibility of commencing the reconstruction, expansion and modernization of the Center in Gostynin as soon as possible so the funds were also allocated for it. It was indicated that this is a “minimal project”, a kind of “drip” to be implemented immediately, being a response to problems with admitting more people, which courts refer to the NCPDB. Complex amendments will be processed separately. This time it concentrates only on the living conditions as they are the most urgent. Unfortunately opening of new buildings of post-conviction isolation doesn’t solve the problem of the practice of excessively frequent referral to the Center, the lack of standards of respecting human rights31 and it doesn’t fill the legal loopholes of the Act. Moreover, it creates further inequalities and problems with respecting the rights of persons deprived of their liberty after serving the sentence. Due to the need to find a place in the Center for two patients, two people were transported to a psychiatric facility with the maximum level of security in Starogard Gdanski. The practice of placing patients of the Center among persons against whom a precautionary measure has been issued raises reservations. They were not housed in a separate place, but placed in general departments along with other patients who are mentally ill and deprived of liberty in this institution on different legal grounds.

29 See: Report of the National Preventive Mechanism in Poland from the visit in Czersk, https://bip. brpo.gov.pl/pl/kmpt/wizytacja-kmpt-w-oddziale-zamiejscowym-krajowego-osrodkazapobiegania-zachowaniom-dyssocjalnym (access: 2.03.2023). 30 Its residents protested against the opening of a branch of the Centre in this location. See: Olejarczyk P. ‘The most dangerous criminals next to the school and kindergarten. Czersk residents full of concern’, https://wiadomosci.onet.pl/trojmiasto/gostynin-niebezpieczni-przestepcy-trafiado-czerska-mieszkancy-protestuja/pgby5ek (access: 12.05.2023). 31 Zalewski (2018), p. 387.

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

21

In addition, these persons were obliged to comply with the internal regulations of the maximum level of security psychiatric institution. These provisions do not apply to people placed in the NCPDB. It is doubtful who can prepare (every 6 months) an opinion on persons placed in psychiatric institution or buildings borrowed from the prison service and whether the District Court in Plock is still be competent to make decisions on prolonging the stay in the Center. Who can deal with their complaints regarding internal regulations or living conditions of such external places. It’s not described anywhere what are the rules of those local departments of the Center and who is in charge of them. But the most important is to underline that the idea of transporting patients from the Center to other temporal places, is not the good solution. After the new building of the NCPDB in Czersk was opened, two patients from Starogard Gdanski were transported to Czersk, where the Centre is located in a former building of the women’s prison.

3.3

Court Proceedings

In the context of living conditions, there are many compensation cases in civil courts (in 2017—3 cases were recorded in the Civil Department of the District Court in Gostynin, in 2018—17 cases, in 2019—20 cases, in 2020—13 cases32). Most of them relates to the living conditions, contact with the family and health care. Helsinki Foundation for Human Rights joined one of such claims for compensation in 2019. Many complaints were directed to the ECHR, and ten of them have been communicated to the Polish government in 2022.33

4 Diagnosed Legislative Gaps 4.1

Amendments to the Act

So far the Act of November 22, 2013 has been amended a few times but only two amendments are worth highlighting here. First of all, article 3a was added to the Act,34 in force since July 1, 2015. In light of this regulation, the Dangerous Persons

32

Description of amicus curiae of the Polish Ombudsman, available at: https://bip.brpo.gov.pl/pl/ content/rpo-kozzd-pacjenci-etpc-skargi-amicus-curiae (access: 2.05.2023). 33 A.S. v. Poland (application no. 28295/21), T.S. v. Poland (application no. 47406/21), J.C. v. Poland (application no. 15624/20), Ł.K. v. Poland (application no. 20228/19), H.A. v. Poland (application no. 24676/18), J.T. v. Poland (application no. 74254/17), A.W. against Poland and W against Poland (applications nos. 43,691/18 and 9173/21), W v. Poland (application no. 43562/17), J.R. v. Poland (application no. 49560/17). 34 Journal of Law 2015, position 396, https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id= WDU20150000396.

22

E. Dawidziuk

Act applies to those who committed a crime before July 1, 2015. After that date, the legislator provided for the application of a new catalogue of precautionary measures (article 93a of the Penal Code). It provides for the use of measures that does not deprive of liberty, such as therapy, addiction therapy and electronic control of the place of stay. Among the isolation measures, the Criminal Code mentions a stay in a psychiatric institution. The above change made the Dangerous Persons Act a temporal law which does not mean that it will be closed soon. There is no such perspective if there are more than 5 thousands people in therapeutic units within prisons and we might assume that some of patients will spend the rest of their life in the Center. The second amendment35 allowed a building to be obtained from the prison service for the purpose of the NCPDB. In such situation tasks of the security service can be performed by Prison Service officers (article 6 paragraph 3). However, except for the indicated amendments, the Act must be comprehensively updated36 or even prepared from the very beginning, taking into account the basic principles related to human rights and created by the jurisprudence of the ECHR. The experience of other countries, especially the Netherlands,37 should also be taken into account in legislative process.

4.2

Grounds for Temporary Deprivation of Liberty

The resolution of 7 judges of the Supreme Court of March 9, 2021,38 states that the provisions on civil protection from the Code of Civil Procedure cannot constitute grounds for temporary deprivation of liberty in the NCPDB. Until now, courts have resorted to such a solution in cases where they have not been able to decide whether to consider a given person as a threat to society or not before the end of his or her imprisonment. The Supreme Court commented on this issue previously on January 30, 2019 in a resolution of three judges of the Supreme Court.39 However, the civil courts still

35

Journal of Law 2021, position 931, https://isap.sejm.gov.pl/isap.nsf/DocDetails.xsp?id= WDU20210000931. 36 Gutkowska & Włodarczyk-Madejska (2020), pp. 19–24 and Dawidziuk & Nowakowska (2020), pp. 14–51. 37 Braun P, Völlm B (eds) (2019) Long-term forensic psychiatric care. Clinical, ethical and legal challenges. Springer. 38 Signature III CZP 89/19, published in OSNC 2021, number 7–8, position 46, http://www.sn.pl/ sites/orzecznictwo/orzeczenia3/iii%20czp%2089-19.pdf. Supreme Court of the Republic of Poland, resolution of 7 judges of March 9, 2021, case number III CZP 89/19. 39 Signature: III CZP 75/18, published in OSNC 2019, number 6, positiion 68, http://www.sn.pl/ sites/orzecznictwo/orzeczenia3/iii%20czp%2075-18-1.pdf. we can add: Supreme Court of the Republic of Poland, resolution of 3 judges of January 30, 2019, case number III CZP 75/18.

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

23

decided to deprive the liberty in the Center in Gostynin on the basis of the provisions on civil protection. Regulating the so-called interim measures are therefore necessary in the context of both resolutions. Statutory regulation indicating procedural guarantees—verification of the temporary detention order every specified period, the possibility of appealing against such a decision. Clear legal provisions are essential here. In the absence of them, the courts duly referred to the provisions on civil protection. As a result, people stayed in the Center on such an inappropriate legal basis, even for a period of 2 years. On the day of issuing a resolution by seven judges of the Supreme Court, five persons were staying in the Center under the provisions of civil protection. It can be assumed that they will seek compensation from the State Treasury.

4.3

Subjective Scope of the Act

Moreover, the subjective scope of the Dangerous Persons Act is so broad at the moment (article 1) that it should be taken into consideration is it possible to change it. For example indicating the required minimum period of stay in a therapeutic unit would restrict the application of the provisions of the Act. Currently, there is no such limit and it happens that a person referred to the Center was serving the sentence in this unit for a very short time, which would mean that he/she did not require therapeutic interventions during the stay in a penitentiary facility.

4.4

Deprivation of Liberty Without Legal Grounds

The legal loophole also relates to the impossibility of further detaining the patient in the NCPDB after the verdict is revoked by the Supreme Court. A case of a man is known who was deprived of liberty without legal grounds for almost 3 months. Another one spent a week too long in the Center after the decision to release him from the Center became final. Also in these cases, compensation should be awarded because of the unlawful deprivation of liberty.

4.5

Internal Regulations

The Act needs to be amended to include provisions regarding the director of the Center’s authority to issue internal regulations. During the development of the 2013 Act, the legislator failed to consider the legal basis necessary for authorizing the director of the NCPDB to issue internal regulations. In practice, despite such a lack,

24

E. Dawidziuk

the director issued regulations relating to the functioning of each of the residential wards and the regulation of visits. According to constitutionalists, the internal regulations in force at the Center violate the Constitution of the Republic of Poland.40 Furthermore, the regulations should provide rules that are well-prepared and stable. They were changed quite often in the past, under the influence of patients’ demands and their hunger protests. That’s why the principle of clarity and transparency of the rules governing this type of deprivation of liberty should be implemented. The internal rules of procedure must be carefully considered, including the recent entitlement granted to patients to use computers and mobile phones with Internet access. Unfortunately, this has led to some patients accessing pornographic site and the police are already conducting proceedings against two patients of the Center.41 For comparison, in the Netherlands, residents have limited access to the Internet, without the possibility of using chats, social networks or pornographic sites. Such pages are blocked and this is a solution that should also be implemented in the Center.

4.6

Compliance with the Constitution and International Standards

It’s the XXI century but unfortunately it’s necessary to underline once again that the limitation of constitutional rights may only take place by statute. Currently, the Act does not contain any standards in this respect, yet internal regulations limit the exercise of constitutional rights. Moreover, it is necessary to emphasize that the living conditions in which persons are deprived of their liberty should respect the principle of respecting human dignity. A minimum living area must be provided and rooms intended for one person may not be converted into double or triple rooms, by adding bunk beds wherever possible. The Act doesn’t say anything on that topic but we must take into account the recommendations of international bodies, such as the CPT,42 which visits various

40

Piotrowski (2020), pp. 129–146. The Polish Ombudsman presented its opinion to the Minister of Health that the Act should precisely define the rules for the possession and use of electronic equipment and the extent of restrictions on Internet access on the Centre’s own equipment as well as on equipment owned by patients. See: https://bip.brpo.gov.pl/pl/content/rpo-kozzd-pacjenci-internet-ograniczenieustawa-mz (access: 2.05.2023). 42 See: CPT, ‘Living space per prisoner in prison establishments: CPT standards’, CPT/Inf (2015) 44 and Report to the Polish Government on the visit to Poland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 11 to 22 May 2017, CPT/Inf (2018) 39, p. 53 which refers to the CPT visit in the NCPDB. 41

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

25

places of deprivation of liberty, or the jurisprudence of the ECHR in the context of violation of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘European Convention’) which prohibits torture and other inhuman or degrading treatment or punishment.43 On the base of two negative decisions of the court that is responsible for the Center in Gostynin (District Court in Plock) it’s also obvious that international standards of the treatment of people deprived of liberty must be the reminded. It refers mostly to the right to family life (article 8 of the European Convention). One of the patients lost his father, the other lost his mother. They both asked for the possibility of participating in the funeral of their parents. The Center’s director considered it inappropriate to make the decision, the requests were sent to the court by the patients of the Center. The court found that it was not competent to issue a decision in the case as the Act did not refer to this issue. In this context, it is worth emphasizing that the European Convention is part of the Polish legal system and should be directly applicable. The case law of the ECHR under article 8 of the European Convention is shaped and there is no doubt that the right to respect for family law implies the right of a person deprived of liberty to attend a funeral.44 It even refers to dangerous prisoner category. In which case you only need to properly secure such a convoy. The patient of the Center would not be allowed to leave the facility on his own, but would go to the funeral in the company of security staff and probably with the use of direct coercion in the form of handcuffs. It’s worth noting that the assessment of cases relating to random passes for the funeral of a relative has changed because one of the courts awarded compensation for infringement of the patient’s personal rights in this regard.

4.7

The Possibility to Go Outside the Building and Food

There is a lack of a standards regarding the right to go outside and time limits in this regard. At the beginning it was only 1 h a day. The patients compare this with penitentiary system where 1-h walk is the right of a prisoner regulated within the Executive Criminal Code. Then it was prolonged at the weekends. After patients held a hunger protest in June 2020, additional time was allowed to walk late in the evening. Provisions relating to food provided to patients would also be expected, specifying what circumstances may cause refusal to consent to the purchase of own meals outside the Center (for example for health reasons).

43

For example cases: Orchowski v. Poland, no. 17885/04, 22 October 2009; Norbert Sikorski v. Poland, no. 17599/05, 22 October 2009; Olszewski v. Poland, no. 21880/03, 2 April 2013; Peers v. Greece, no. 28524/95, 19 April 2001; Valašinas v. Lithuania, no. 44558/98, 24 July 2001. 44 For example cases: Kanalas v. Romania, no. 20323/14, 6 December 2016; Giszczak v. Poland, no. 40195/08, 29 November 2011; Płoski v. Poland, no. 26761/95, 12 November 2002.

26

E. Dawidziuk

The legislator, having experience from other places of isolation, should also regulate the rules of proceeding in the event of extraordinary events, such as prolonged refusing to take meals or suicide attempts. Without a clear legal basis, compulsory feeding is currently unacceptable. Meanwhile, several times, for different periods of time, the patients of the Center were on hunger strike. In an extreme situation, the staff of the NCPDB would not have any basis for compulsory feeding, and thus saving patients’ lives. An attempt to take a patient who was starving for a month to a prison hospital in Prison No. 2 in Lodz ended with the refusal of the director of the penitentiary unit to admit him to the hospital ward. There is no relevant statutory basis for this.

4.8

The Right to Lodge a Complaint

In closed institutions it’s always extremely important to guarantee the right to complain. The Act does not regulate the issue of when the application, complaint or request should be examined. Patients make complaints that they do not receive answers from the director. Till the hunger strike it was not also possible to have the meeting with the director. The agreement following the hunger strike led to the arrangement of one meeting with the director and the deputy director once a month. Meetings are held in each residential ward with patient’s representatives. Additionally, an individual interview is conducted with one or two patients. Can such a solution be considered appropriate, respecting the right to lodge a complaint, discuss situations or problems with the director? The answer is no. Therefore, it would also be important to include in the Act the obligation to visit residential wards by the director of the Center. This guarantees patients the opportunity to talk to a decisionmaking person, present their problems, especially the current ones. The provisions of the Act of November 22, 2013 do not also stipulate that the decisions of the director of the Center may be appealed against to the District Court in Plock, to which the Center is subjected, or which types of decisions cannot be a matter of appeal.

4.9

Disciplinary Measures

Furthermore, the catalogue of measures that can be applied in the case of positive and negative patient behaviours should be included in the Act. It is very important both for people placed in the Center and for the staff employed there. Transparency of standards will eliminate discretion in making decisions on this subject. Unfortunately in the course of examining the cases reported by the patients, unacceptable forms of treatment e.g. the form of collective responsibility of patients were noted.

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

4.10

27

Dealing with Correspondence

There are also no regulations that would define the grounds for supervision, censorship or retention of correspondence. Identifying correspondence with specific national and international entities that may not be subject to any of these forms of control is important given the current practice. In the past letters from the Ombudsman Office as well as from the ECHR were opened before they were given to the patient. Center’s management explained it by security reasons and the necessity to remove all staples from the letters. After such practice was denied by the Ombudsman, it was abandoned. There is no doubt that such practice infringed the international standards. The Act or the ordinance issued on the basis of it should also provide for the possibility of sending a letter by fax or e-mail, especially in urgent situations requiring an urgent decision by the court, e.g. when receiving information about the funeral of the closest person and applying for consent to participate in the funeral ceremony.

4.11

Financial Support for Patients

It is also important to clarify the principles of incurring costs by patients, including the possibility of covering them by the administration of the Center in certain cases, e.g. when the patient does not have any funds on the account (he does not receive any pensions, benefits from a social welfare center, there is no financial support from relatives). The Act should also give the director of the Center the right to grant an allowance or provide the patient with basic personal hygiene measures or clothes, if his own is not suitable for use or if the patient does not have his or hers own funds.

4.12

Health Care

Lack of procedures to be followed in the case of the necessity of treatment requiring complicated medical procedures or subjecting the patient of the Center to long-term hospital examinations. The Act of 22 November 2013 does not provide for a break in the stay at the Center due to the need for long-term treatment. Security staff accompany the patient even on the premises of the prison hospital in Prison No. 2 in Lodz, where dental services are currently provided, patients are transported to other specialist doctors outside, to public health care units. Furthermore, the provisions of the Act of 22 November 2013 do not specify who bears the cost of treating a patient of the Center in a prison health care facility. In accordance with article 26 (2) of the Dangerous Persons Act, health services that cannot be provided in the Center are provided to the patients of the Center in the first

28

E. Dawidziuk

place by medical entities for persons deprived of liberty. It means in practice two different principles of financing health care—in a penitentiary institution it’s financed by the Ministry of Justice and in the NCPDB by the Ministry of Health. When amending the provisions of the Act, this issue should be settled as the applicable legal regulations should also take this issue into account.

5 Conclusions The preventive detention after serving the whole sentence that was established in Poland in 2013 should be assessed as requiring urgent changes. The standards of respecting the rights of persons deprived of liberty, created by the ECHR and the CPT, are currently not adequately guaranteed. The Dangerous Persons Act itself contains a huge number of legal loopholes or legislative errors that have emerged from the application of its provisions. Problems that emerged during the whole period of the Center’s existence give sufficient material to identify what should be changed. It was described in the Ombudsman’s general letters and in some publications referring to preventive detention in Poland. The Polish Ombudsman has been seeking a comprehensive amendment to the Act of November 22, 2013 for the last nine years. Unfortunately, the Minister of Health to whom the Center is subjected, the Minister of Justice, who was responsible in 2013 for the content of the Act, as well as the Prime Minister, did not react. The list of more than 60 interventions45 shows the process of it. An amendment has been drafted in the Ministry of Health in 2022,46 but is not proceeding through the government legislative process. In my opinion, it is possible that the suspension of work on this project is linked to waiting for the judgments of the ECtHR in the 10 communicated cases concerning respect for the rights of patients in preventive detention. The introduction of legislative changes to the Act must be preceded by a discussion on the basic aim and philosophy of the Center’s functioning, conducted by experts dealing with the penitentiary system, who know foreign systems in the context of isolating people who may pose a threat to the society, scientists conducting researches, legislators, government representatives. These comprehensive changes cannot be enacted as quickly as the law was passed in 2013 but at the same time addressing this topic cannot be postponed any longer.

45 All of them are available on the Ombudsman’s website in the section referring to the NCPDB: https://bip.brpo.gov.pl/pl/kategoria-tematyczna/kozzd-gostynin. The list is available under the link: https://bip.brpo.gov.pl/sites/default/files/Lista_wystapien_generalnych_RPO_ws_KOZZD_1 8.01.2021.pdf. 46 The number of the project UD 350 of 4 April 2022, https://legislacja.rcl.gov.pl/projekt/12358362.

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

29

Considering German47 or Dutch48 experience it is necessary to reach for adequate solutions, but also to decide on a specific model of functioning of this type of therapeutic facility in Poland. The current shape of the NCPDB cannot be accepted. To guarantee full respect for human rights, changes are required in many areas of the functioning of this place. The Center should be primarily therapeutic in nature and therefore this sphere should be professionally organized, the living conditions must be created so that the therapy is possible and patients are guaranteed the right to privacy. The conditions in which they stay should be shaped in such a way as to guarantee humanitarian treatment of people deprived of their liberty. Currently, we can talk about a potential violation of article 3, 5 and 8 of the European Convention. Complaints on this subject are pending at the ECHR. Undoubtedly, the judgements of the Tribunal in these cases will be very important for the future shape of postpenal isolation in Poland. Before that, human rights protection institutions must closely monitor the further developments in the field of legislative changes and undertake individual interventions in those cases that require it. It’s worth underlining once again that post-penal isolation must take place in conditions that will respect human dignity—appropriate living conditions, adequate area, possibility to fill the free time. The current living conditions and legal gaps49 create a tense atmosphere both between patients and between patients and employees. In June 2020, patients went on a hunger protest. The second one took place in February 2021.50 In this way, patients were fighting to change the conditions of their stay in the Center, the rules governing this place, but also expressed opposition to the Act. They should be able to spend the time that is not devoted to therapy in an active and useful way (for instance through gardening, work, workshop activities), play sports, go out in the fresh air, have contact with their families. Isolation must not give them the feeling of hopelessness in spite of the fact that the therapy for this category of people is difficult. Last but not least the internal regulations must be permanent, it can’t be changed as often as it was in the past because it doesn’t not create the stabilization. It should be stated that the functioning of the Center in each of these elements is currently failing, and the rules of the daily life of patients must be modified. Placing the patient in the NCPDB is actually and legally deprivation of liberty. Therefore, the legislator should precisely regulate the conditions of stay in such a place, and in particular regulate restrictions on the exercise of constitutional rights and freedoms. Temporary transfer of patients to a psychiatric facility, creating temporary places of stay in buildings borrowed from the prison service, does not solve the huge list of problems of the Center and generally post-penal isolation in Poland. When creating new legal regulations, one must not forget about respect for

47

Kilchling (2011). Braun and Völlm (2019). 49 Dawidziuk & Nowakowska (2020), pp. 14–51. 50 https://bip.brpo.gov.pl/pl/content/kozzd-gostynin-protest-glodowt-rpo-do-ministra-zdrowia. 48

30

E. Dawidziuk

human rights, the prohibition of inhuman and degrading treatment of every citizen, including persons deprived of liberty in preventive detention facility.

References Bocheński M (2016) Practical aspects of assessment of risk of re-offending by “especially dangerous” offenders in the context of the judgement of the Constitutional Tribunal of 23 November 2016 (K 6/14). Prob Forensic Sci 108:632–650 Braun P, Völlm B (eds) (2019) Long-term forensic psychiatric care. Clinical, ethical and legal challenges. Springer Constitutional Tribunal of the Republic of Poland, judgement of 23 November 2016, case no. K 6/14, published in OTK ZU A/2016, item 98 Dawidziuk E (2019) Izolacja od społeczeństwa po odbyciu w pełni kary pozbawienia wolności. Arch Kryminol 1:219–260 Dawidziuk E (2020) Luki w przepisach prawa powszechnie obowiązujacego w zakresie izolacji postpenalnej w Krajowym Ośrodku Zapobiegania Zachowaniom Dyssocjalnym. In: Dawidziuk E, Nowakowska J (eds) Izolacja sprawców przestępstw uznanych za niebezpiecznych dla społeczeństwa. Ombudsman Office, pp 35–37 Dawidziuk E, Nowakowska J (2020) Izolacja sprawców przestępstw uznanych za niebezpiecznych dla społeczeństwa. Wydawnictwo Biuro Rzecznika Praw Obywatelskich Długosz J (2015) Granice legalnej postpenalnej detencji osób stwarzających zagrożenie. In: Małolepszy M (ed) Reforma systemu sankcji w Niemczech, Austrii i w Polsce. C.H. Beck, Wydawnictwo Gierowski J, Paprzycki L (2014) Kontrowersje związane z ustawą z dnia 22 listopada 2013 r. o postępowaniu wobec osób z zaburzeniami psychicznymi stwarzających zagrożenie życia, zdrowia lub wolności seksualnej innych osób – perspektywa prawna i psychiatrycznopsychologiczna. Palestra 9:144–161 Gutkowska A, Włodarczyk-Madejska J (2020) Stosowanie ustawy o postępowaniu wobec osób z zaburzeniami psychicznymi stwarzających zagrożenie życia, zdrowia lub wolności seksualnej innych osób a orzekanie wybranych środków zabezpieczających. Analiza porównawcza rozwiązań prawnych. Instytut Wymiaru Sprawiedliwości Heitzman J (2013) Expert opinion of 3 September 2013 to the draft law on the treatment of towards persons with mental disorders who pose a threat to the life, health or sexual freedom of others. In: P. Koscielny (ed) Government draft act on proceedings towards persons with mental disorders posing a threat to the life, health or sexual freedom of sexual freedom of others (Sejm print no. 1577). Parliamentary bill on amending the Act - Penal Code and the Act - Code of Criminal Procedure and the Act - Code of Executive Penal Procedure (Sejm print no. 1538). Office of Parliamentary Analyses, Warsaw Kilchling M (2011) Die Zukunft der Sicherungsverwahrung? Monatsschrift für Kriminologie und Strafrechtsreform 94(4):iii–v Kukliński P (2022) Pandemia w instytucji totalnej na przykładzie Krajowego Ośrodka Zapobiegania Zachowaniom Dyssocjalnym w Gostyninie. Studia Iuridica 91:164–184 Piotrowski R (2020) Opinia o zgodności z Konstytucją RP wewnętrznego regulaminu organizacyjno-porządkowego pobytu pacjenta w Krajowym Ośrodku zapobiegania Zachowaniom Dyssocjalnym z dnia 17 września 2018 r. In: Dawidziuk E, Nowakowska J (eds) Izolacja sprawców przestępstw uznanych za niebezpiecznych dla społeczeństwa. Wydawnictwo Biuro Rzecznika Praw Obywatelskich, pp 129–146 Płatek M (2019) Kreowanie groźnych, niebezpiecznych i złych. Arch Kryminol 1:125–217

Human Rights in the Context of Post-Conviction Preventive Detention in Poland

31

Płatek M (2020) Negatywne skutki iluzji terapii. Uwagi o stosowaniu ustawy o postępowaniu wobec osób z zaburzeniami psychicznymi stwarzających zagrożenie życia, zdrowia lub wolności seksualnej innych osób. Państwo i Prawo 11:93–108 Supreme Court of the Republic of Poland, resolution of 3 judges of January 30, 2019, case number III CZP 75/18 Supreme Court of the Republic of Poland, resolution of 7 judges of March 9, 2021, case number III CZP 89/19 Szwed M (2021) The Polish model of civil post-conviction preventive detention in the light of the European Convention on Human Rights. Int J Hum Rights 25:1–25. https://doi.org/10.1080/ 13642987.2021.1874937 Zalewski W (2018) Detencja “terapeutyczna” – wątpliwości konstytucyjne i polityczno-kryminalne w kontekście ustawy o “bestiach”. Gdańskie Studia Prawnicze 4(40):371–388

Ewa Dawidziuk is an Assistant Professor at the Faculty of Law at the SWPS University. She is also the Director of the Execution of Penalties Department in Polish Ombudsman Office where she’s dealing with thousands of complaints from prisoners every year. She holds a doctorate in Law with specialization in criminal executive law. Ewa specializes in the penitentiary system, criminal execution law, protection of human rights of people deprived of liberty in different places of detention. She is the author of many publications among others related to the treatment of prisoners and its international standards, post-conviction isolation in Poland, mentally ill people in penitentiary system.

Execution of a Prison Sentence. International Standards: The Local Perspective Paulina Wiktorska

Abstract The execution of a prison sentence is a difficult challenge in the context of compliance with international standards, including, in particular, guaranteeing human rights. This applies both to trials in the penitentiary courts and to the serving of prison sentences. Many of the international recommendations (including the European Prison Rules) encounter difficulties in their application due to local limitations in the Polish penitentiary system. These problems include not only the overcrowding of prisons and the outdated architectural infrastructure of the buildings in which they are situated, but are also related to the excessive burden placed on prison officers and the rules under which penitentiary courts exercise control over the execution of prison sentences. This includes, but is not limited to, prison furlough and parole. Penitentiary judges are left “to fend for themselves” in Poland, deprived of support from psychologists, psychiatrists, or probation officers. In many countries’ penitentiary systems, decisions regarding conditional release from prison are taken by a collegiate group of experts or by a court that decides on the level of sentence. A growing problem in prisons is the large number of deaths, some of which are of course suicides, but most of them are due to ill health of the convicted persons and insufficient access to medical services. This problem is aggravated by the fact that there is a large percentage of elderly people in Polish prisons who require specialist care. This is worrying in the light of the global Covid 19 epidemic. Statistical data show that infections in closed institutions, such as nursing homes, geriatric and psychiatric hospitals and community centres, make it practically impossible to prevent the spread of the virus. The local problems of the Polish penitentiary system affect not only prisoners, but also prison officers and prison judges (employee rights).

P. Wiktorska (✉) Institute of Legal Studies, Polish Academy of Sciences, Warsaw, Poland e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Czarnecki (ed.), Human Rights Protection and Ius Puniendi, European Union and its Neighbours in a Globalized World 11, https://doi.org/10.1007/978-3-031-41253-0_3

33

34

P. Wiktorska

1 Introduction The execution of a prison sentence is a difficult challenge in the context of compliance with international standards, including, in particular, guaranteeing human rights. This applies both to trials in the penitentiary courts and to the serving of prison sentences. Many of the international recommendations (including the European Prison Rules) encounter difficulties in their application due to local limitations in the Polish penitentiary system. These problems include not only the overcrowding of prisons and the outdated architectural infrastructure of the buildings in which they are situated, but are also related to the excessive burden placed on prison officers and the rules under which penitentiary courts exercise control over the execution of prison sentences (Bąk and Zbrożyna-Tutak 2018, p. 137). This includes, but is not limited to, prison furlough and parole. Penitentiary judges are left “to fend for themselves” in Poland, deprived of support from psychologists, psychiatrists, or probation officers. In many countries’ penitentiary systems, decisions regarding conditional release from prison are taken by a collegiate group of experts or by a court that decides on the level of sentence. A growing problem in prisons is the large number of deaths, some of which are of course suicides, but most of them are due to ill health of the convicted persons and insufficient access to medical services (RPO 2021a). This problem is aggravated by the fact that there is a large percentage of elderly people in Polish prisons who require specialist care. This is worrying in the light of the global Covid 19 epidemic. Statistical data show that infections in closed institutions, such as nursing homes, geriatric and psychiatric hospitals and community centres, make it practically impossible to prevent the spread of the virus (RPO 2021b). The local problems of the Polish penitentiary system affect not only prisoners, but also prison officers and prison judges (employee rights). The aim of the study is not an exhaustive and complete discussion of the problem of compliance of the Polish legislation and practice of imprisonment but only a selection of certain aspects of this issue, like a pandemic, aging of population, overcrowding and inadequate detention conditions, practice of conditional release, and penal populism, which according to the author require reflection and commentary.

Execution of a Prison Sentence. International Standards: The Local Perspective

35

2 Basic Principles of the Polish Penitentiary System in the Light of International and Constitutional Standards The Polish Executive Penal Code 1 in force since 1997, although amended many times hitherto, represented from the very beginning the features of a modern legislation, based on basic principles resulting from international standards. It also undoubtedly took into account new conditions, caused by the dynamic political, social and economic situation, which changed the legal system and culture in Poland during the transformation after 1989. The sources of inspiration for the penalexecutive legislation were not only the newly shaped constitutional standards, but also general human values commonly accepted in the civilised world, “which we find in the concept of human rights, as well as in the philosophy of the laws of nature, religious systems and other systems of values constituting the basis of a democratic society”(Hołda, Postulski 2008, p.14).2 The scientific literature draws attention to the fact that these values find their expression above all in the general principles enshrined in the Executive Penal Code. such as: respect for human dignity, subjective treatment of the convicted person, right to material and formal defence, condition of statutory restriction of individual rights and freedoms. They also include the principle of judicial control of extrajudicial bodies of executive proceedings, individualisation and the possibility of flexible modification of penalties, re-socialisation, minimisation of the social costs of enforcing penalties and, finally, public participation in enforcing sentences and social assistance in the readaptation of sentenced persons. All these principles are treated as the core of the functioning of the penitentiary system as a whole,3 which is to ensure humane, dignified, just and individualised treatment of the convicted person serving a sentence of imprisonment, which is absolutely necessary as respect for his or her dignity and the human rights that result from it (Hołda 2007, p. 134). The question of the approach to re-socialisation, as one of the objectives of imprisonment, requires clarification. When the Executive Penal Code was enacted, there was a discussion in the legal community as to whether the inclusion of re-socialisation as one of the objectives of serving a custodial sentence did not contradict respect for human dignity and the resulting human rights (Hołda 2007, p. 134). As a result, the legislator abandoned the direct use of the word “re-socialisation” in favour of the phrase “inducing the

1

The act of 6th June 1997, the Executive Penal Code, i.e. Journal of Laws 2019, item 676 as amended). 2 From the justification of the governmental draft of the Executive Penal Code, Hołda, Postulski, https://sip.lex.pl/komentarze-i-publikacje/komentarze/kodeks-karny-wykonawczy-komentarz587233668,14, accessed on 30/09/2021. 3 Dawidziuk (2013), pp. 13–22; Gerecka-Żołyńska (2021), pp. 31–61; Hołda (1988); Hołda and Postulski (2005); Kuć (2017), pp. 12–18; Kalisz and Bogunia (2005); Lelental (2020), pp. 11–14; Migdał and Szymanowski (2014); Pawela (1999); Stańdo-Kawecka (2019); Szymanowski (2016), pp. 51–70.

36

P. Wiktorska

convicted person to cooperate in shaping socially desirable attitudes”. However, compulsory re-socialisation, consisting of the compulsory referral of a convicted person to a system of programmed impact or therapeutic system, was introduced for juvenile offenders, which in terms of the implementation of the principle of respect for dignity and subjectivity may give rise to certain doubts, but at the same time meets the expectations of society concerning the prevention and combating of crime (Stańdo-Kawecka 2019, p. 236). The need for the proper treatment of persons serving sentences of imprisonment has already been expressed at the constitutional level, in particular manifested in the provisions of Article 30 of the Constitution of the Republic of Poland, which stipulates that the inherent and inalienable dignity of a human being lies at the basis of all his or her freedoms and rights, both human and civil; Article 40, which prohibits torture, cruel or inhuman treatment or punishment and the use of corporal punishment; and finally Article 41(4), which in turn provides that every person deprived of his or her liberty should be treated humanely. The juxtaposition of the provisions of the Polish Executive Penal Code, issued in accordance with the provisions of the Constitution of the Republic of Poland, with the legal standards stemming from international law, seems to be satisfactory in principle. In particular, the provisions of the Polish Executive Penal Code take into account most of the regulations of international law, in an appropriate manner, depending on their legal force (Szymanowski 2011). This refers primarily to the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1943, the International Covenant on Civil and Political Rights, adopted by the UN General Assembly in 1966, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the UN General Assembly in 1984, and the Convention for the Protection of Human Rights and Fundamental Freedoms (abbr: European Convention on Human Rights), signed in Rome in 1950, which has the character of a regional act of international law. Of particular importance is Article 5 of the Convention, which on the one hand lists the conditions that must absolutely be met in order for a person to be deprived of his or her liberty, and on the other hand sets out the conditions that must be met in order for the deprivation of liberty to be lawful (Szymanowski 2011, p. 27). The detailed guidelines concerning the implementation of a sentence of deprivation of liberty and the treatment of persons sentenced to it are primarily contained in the European Prison Rules (Recommendation Rec 2006/2 of the Committee of Ministers to the Member States of the Council of Europe). It is, of course, impossible to rank the individual rules in terms of their importance, as they deal with various aspects of imprisonment, but many of the rules derive from the principle of normalisation, as expressed in Rule 5 of Part I of the document. It provides that “life in prison must, as far as possible, correspond to the positive conditions of life in society”.4 Punishment must not be an end in itself, but must always be a means to an end (Warylewski

4

Part 1, Reg 5, European Prison Rules—https://rm.coe.int/european-prison-rules-978-92-8715982-3/16806ab9ae, p. 2, accessed on 12/04/2023.

Execution of a Prison Sentence. International Standards: The Local Perspective

37

2006, p. 19). The principle of standardisation introduced by the Rules implies the need to respect intermediate principles such as openness, accountability, security, minimum intervention and maximum use of available resources.5 To sum up, in bringing national legislation into line with international standards, it is above all a matter of ensuring that penal provisions take account of fundamental principles such as: nullum crimen sine lege, nulla pena sine lege, lex retro non agit, material and formal guarantees of the right of the accused to a defence, the principles of humanity and individualism in the administration of punishment. Serious doubts as to the observance of international standards in the deprivation of liberty of a human being are raised, however, by the act on dealing with persons with mental disorders who pose a threat to the life, health or sexual freedom of others6 which, in a non-codified form, introduces the possibility of applying preventive supervision, in fact assuming the character of a custodial sentence, to a certain category of persons. We are talking about persons sent to the National Centre for the Prevention of Dissociable Behaviours in Gostynin. A decision in this respect is taken by a civil court in non-trial proceedings. The patients placed in the centre are persons who have previously served a full custodial sentence. The Polish legislator has not defined the detailed rules concerning the rights and obligations of those patients and has not introduced legal grounds for restricting their constitutional freedoms and rights which are also guaranteed internationally (Dawidziuk 2019, p. 236). The National Centre for the Prevention of Dissocial Behaviour is a special place for the deprivation of liberty. Normative bases for its functioning, recognised as compliant with the Constitution of the Republic of Poland, are applied with great discretion by state executive bodies (Dawidziuk 2019, p. 252). The procedure for the release of persons from the centre, decided by the Regional Court in Płock, raises considerable legal doubts. The procedure is completely at odds with the premises allowing persons sentenced to mandatory imprisonment to apply for the institution of conditional early release provided for in Polish executive law. In general, a person serving a sentence of imprisonment may be released from part of their sentence if an analysis of the following premises: attitude, personal qualities and conditions, their way of life before committing the offence, the circumstances connected with committing the offence, their behaviour after committing the offence, their behaviour while serving the sentence, taken together give grounds for a collective assessment of the convicted person’s criminological prognosis. Their assessment must create a justified conviction that the convicted person will observe the rule of law and, in particular, that he or she will not re-offend. Decisions in this respect are taken by the penitentiary court. In the literature on legal dogmatics, criminology or social psychology there are extensive theories, supported by many empirical studies, concerning the negative impact of prison isolation on the human psyche. Such phenomena as stigmatisation,

5

European Prison Rules discussed on the basis of: Płatek (2006). Act of 22nd November 2013 on dealing with persons with mental disorders who pose a threat to the life, health or sexual freedom of others (Journal of Laws 2019, item 2203 as amended). 6

38

P. Wiktorska

standardisation, degradation and depersonalisation mainly determine the degree of prisons and the degree of prisoners’ adaptation to the conditions of life in a closed environment (Ciosek 2016, pp. 216–217; Niedźwiecka 1994). Serving a sentence of imprisonment in a penitentiary institution, however, allows a person deprived of liberty to end his or her sentence early under solitary confinement and continue it under probationary conditions of freedom, while isolation after serving a full sentence for persons considered dangerous and incarcerated in a centre no longer provides for such rules. Polish legal regulations on post-penitentiary preventive detention raise many doubts related to the weakening of the rule of law standards, however solutions of a similar nature are present in the German, Dutch or Norwegian systems, among others (Płatek 2019, p. 127).

3 The Law in Action. Does Practice Have to Deviate from Normative Standards? Selected Aspects The law established by a rational legislator does not guarantee the possibility of its effective implementation. According to the hypothesis of the three-stage action of law created by Adam Podgórecki (Podgórecki 1998), the effectiveness of a specific legal act depends on three variables. Firstly, on the content of the legal provision itself and the legislator’s intent behind it, secondly, on a specific subculture which is the link between the legislator’s instructions and social behaviour and finally, on the direct implementers of the legal provisions. Thus, even if legal provisions do not raise doubts as to their rationality and compliance with accepted international standards, the effectiveness of their application may significantly deviate from the assumed objectives. This, in turn, leads to the impossibility of achieving all the effects envisaged by the legal provisions. The basic problems faced by Polish penitentiary practice in this respect relate primarily to overcrowding in penitentiary institutions and the excessive workload of prison officers. According to official data from the Ministry of Justice, the ratio of imprisoned persons per 100,000 inhabitants in Poland in 2019 amounted to 193, higher by 6% than in 2000, but already less than 50% higher than in 1990 (Gruszczyńska et al. 2021, p. 196). The increase in the prison population, with limited investment in penitentiary infrastructure and overburdening of prison service personnel, increases the risk of the occurrence in penitentiary institutions of violations of the basic principles of executive penal law, including in particular the principle of the subjective treatment of convicted persons and the principle of normalisation of imprisonment. The situation is not improved by the policy of applying conditional early releases from part of the imprisonment served. On the one hand, in recent years, there has been a gradual increase in the number of applications for granting conditional early release, and on the other hand, the percentage of applications which are granted has been falling (Gruszczyńska et al. 2021, p. 196). For many years, a trend has been visible that the applications submitted by representatives of the administration of correctional facilities are

Execution of a Prison Sentence. International Standards: The Local Perspective

39

considered positively by penitentiary courts in the vast majority of cases, while those submitted by inmates on their own or through legal representatives are considered negatively (Wiktorska 2010, Wiktorska 2014, pp. 198–199). What seems to be disturbing is above all the fact that courts adjudicate on conditional release in a routine manner, often without actually verifying the positive criminological prognosis of the convict and even without hearing him or her during the hearing. The court takes the decision on its own, often on the basis of the application only, which is limited to listing the number of penalties and regulatory awards as well as the convict’s behaviour while serving the sentence. As a rule, when deciding on conditional early release, penitentiary courts should, in my opinion, base their decision on assumption of individual prevention, rather than general prevention, which is already taken into account to a satisfactory degree by the criminal court when sentencing for a crime and deciding on the level of sentence. The practice of the judiciary in this respect varies and the line of judicial decisions is not uniform even within the same appellate jurisdiction. As emphasised by the Supreme Court in its resolution of 26th April 2017 (Ref. No. I KZP 2/17), the basis for deciding on conditional early release from serving the remainder of a imprisonment sentence are the criteria set out in Article 77 § 1 of the Criminal Code, while the sentencing guidelines set out in Article 53, Article 54 § 1 and Articles 55 and 56 of the Criminal Code are not the premises for deciding on this issue. An application to the Supreme Court was submitted by the Ombudsman, which confirms the doubts regarding the interpretation of the legislation in terms of respecting the human rights of persons deprived of their liberty. In substantiating his application, the Ombudsman drew attention not only to the discrepancies in judicial decisions, but also pointed to the divergence of views in the scientific literature on the subject, which makes it impossible to refer to the doctrinal interpretation, since this is only possible in a situation where the doctrine represents a uniform, or at least significantly prevailing, opinion on a given subject (Morawski 2002, p. 60). The latest legislative changes, which have led to a radical tightening of the rules for applying conditional early release and the exclusion of persons sentenced to life imprisonment from the possibility of benefiting from this institution, also seem to be worrying. By imposing the penalty of life imprisonment on the perpetrator for an act committed by him after a valid conviction for a crime against life and health, freedom, sexual freedom, general security or for a terrorist offense, to life imprisonment or to imprisonment for a period of not less than 20 years, the court may order a total prohibition of conditional realise. This is clearly incompatible with the European Prison Rules and the recommendations issued on their basis. Of fundamental importance for the issue at hand is Recommendation Rec (2003)22 of the Committee of Ministers to member states on

40

P. Wiktorska

conditional release (parole).7 The Recommendation defines conditional release as follows: conditional release means the early release of sentenced prisoners under individualised postrelease conditions. Conditional release is a community measure. Conditional release should aim at assisting prisoners to make a transition from life in prison to a law-abiding life in the community through post-release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community.

The Recommendation sets out the basic principles to be met by the institution of conditional early release from part of the prison sentence. The objectives to be met by this institution are: a reduction in the harmful effects of prison isolation, promotion of the process of social readaptation of convicted persons, minimisation of the risk of recidivism and protection of the legal order of society. The recommendation requires that the right to conditional release be granted to all prisoners sentenced to imprisonment, including those sentenced to life imprisonment. The prisoner should be informed of the possibility of availing him or herself of this institution at the commencement of their imprisonment. Conditional release should be combined with supervision and supported by control measures. However, conditions and supervision should be applied only to the extent necessary to protect the law and social security. Finally, conditional release should be applied in a maximally individualised manner, taking into account all the circumstances of the personal life of the convicted person who is to benefit from this institution. Excessive restriction of the granting of conditional release also poses a threat to the possibility of arousing in the convicted person a tendency to positive attitudes and motivation so that, upon leaving prison, he or she respects the rule of law and, in particular, does not re-offend. Being aware of the fact that he or she will remain in isolation for the rest of their life, the convicted person loses hope for the realisation of any individual life plans, ceases to be treated in a way compliant with the principle of humanism and the principle of subjective treatment, which, as mentioned before, constitute and should constitute the pillars of executive penal law. It should also be noted that conditional early release is an institution that ensures, in a sense, the regulation of the prison population, which, with the problem of severe overcrowding, is a problem, leading not only to real threats, related to violations, both of the standards arising from international law but also national law. In 2019, there was a total of 74,130 prisoners in Polish prisons, i.e. the ratio per 100,000 inhabitants was 193.1 (Gruszczyńska et al. 2021, p. 110). Thus, this generates a high workload for Prison Service employees, which is one of the highest in Europe. Working in a penitentiary requires not only professional preparation and psychological resilience, but also should be performed in conditions that meet the principles of health and safety at work. Meanwhile, Polish prisons are often located in old buildings with very poor infrastructure, which causes an additional burden, not only on the inmates

7

Text of the document available at www.coe.int, The Recommendation contains a comprehensive regulation of the institution of conditional release, also referring to other European documents issued in this area.

Execution of a Prison Sentence. International Standards: The Local Perspective

41

themselves, but also on the people working in them. This situation is fostered by the increase in penal populism that has been observed in recent years, which is very pronounced both among politicians and in public opinion, and is additionally reinforced by media coverage. Judges passing sentences in criminal cases are often under strong pressure to pass the highest possible sentences. While in 1999, the number of executed sentences of 25 years imprisonment was 786, in 2010 it was already 1517, in 2019 it reached 1769 cases. There is also an increase in sentences of more than 10–15 years: in 1999 there were 1967 cases, in 2010 there were 2844 cases and in 2019 there were 2586 cases (Gruszczyńska et al. 2021, pp. 114–115).

4 New Challenges for the Penitentiary System The Polish penitentiary system is currently facing new and difficult challenges. One of them is the observable ageing of the prison population, which results from the punitive attitude of both the legislator, who introduces a high statutory threat of punishment for committing certain crimes, and the attitudes of judges, who often, under the influence of penal populism propagated through the media, pronounce penalties at the upper limits of the statutory threat. Hence the number of older people imprisoned is growing year by year. While in 2000 the number of prisoners over 67 years of age was 192, in 2019 it was 983 (Gruszczyńska et al. 2021, p. 114). The elderly require different standards of imprisonment than the young, and it is not only a matter of housing conditions, including the provision of adequate sanitary conditions, but also of access to facilities providing mobility support, medical care, rehabilitation and specialised nutrition. In the case of this age category of detainees, care must be taken to respect humanity, dignity and the prohibition of interference with personal goods over and above the objectives to be achieved by a custodial sentence. The challenge is not only the question of financing the organisation of the system of imprisonment of the elderly, but also the appropriate preparation of prison staff. Contact with older people requires specialised geriatric skills, which prison staff often lack. It is also worth noting that the construction of recidivism in Polish criminal law is a kind of contractual construction, which makes it possible to convict under this regime both persons who have committed more serious offences, and those who have committed crimes of significantly lesser gravity. Criminological research on criminal careers (Klaus et al. 2021) indicates that criminal activity in the vast majority of cases declines with age. In view of the above, doubt arises as to whether continuation of imprisonment of persons with regard to whom there is a positive forecast that after leaving prison they will observe the legal order, and in particular will not commit a crime again, if only because of their advanced age, physical fitness, health problems, mobile exclusion, etc., does not constitute a form of violation of human rights, the observance of which is guaranteed both at the national and international level. In view of the above, a de lege ferenda postulate arises as to whether it would not be reasonable to consider the possibility of introducing such a legal regulation that the penitentiary court, ex officio or upon

42

P. Wiktorska

request, after the inmate has reached a certain age, verifies his or her criminal prognosis, irrespective of the necessity to fulfil all the conditions for applying for a conditional early release, especially those concerning the period of the sentence served. The more so, that at the stage of sentencing the court has the option to extend the period after which the convict will acquire the right to apply for conditional early release, beyond what is provided for in the Executive Penal Code. The lack of detailed normative regulation of this issue seems to violate the principle of flexible modification of penalties, which, according to the literature and case law, is one of the basic principles of the Polish penitentiary system. Another problem that cannot go unmentioned is the prevailing worldwide epidemic of the Sars—covid19 virus from 2019. The legislator has introduced a new regulation which allows for a break in the execution of the penalty of deprivation of liberty during the period of an epidemic threat or state of epidemic announced due to COVID-19. The matter is ruled by the penitentiary court at the session, at the request of the director of the prison, approved by the Director General of the Prison Service. The director of the prison may submit such a request if, in his opinion, the provision of a break to the sentenced person may contribute to the reduction or elimination of the epidemic. This institution deserves a positive assessment, despite the fact that it is contrary to the principle of the continuity of punishment, it undoubtedly serves to protect the health and life of convicts. However, the real security of the life and health of inmates should not be indefinite or limited by a short period of time (especially since the time of the end of the pandemic is unknown), or dependent on the good conduct of the convict or the moment when the sentence begins, and this is due to the principle of humanitarianism (Grzesiak 2020). Certain categories of convicts, however, have no chance of getting a break in serving their sentence: it concerns convicts for an intentional crime punishable by imprisonment exceeding 3 years, for an unintentional offense, a penalty exceeding 3 years’ imprisonment and convicts re-offending (recidivists). “Since almost the very beginning of the 21st century, the prevalent criminal policy in Poland has been punitive, seeking to solve almost all problems related to crime by means of one solution, i.e. more severe penalties” (Woźniakowska-Fajst and Witkowska-Rozpara 2022, p. 77). Definitely Covid 19 caused an increase in punitiveness and limiting civil liberties, including the rights persons sentenced to imprisonment, but also penal populism had a large impact in this area. Penal populism is not defined uniformly and avoiding a definition of populism (generally), critics tend to simply conflate populism with contemporary right-wing authoritarianism (Hogg 2022, p. 15). For example, we can find opinion that populism is the reverse side of the representative democracy. It comes from within it and feeds on its mechanisms. It is a specific dangerous “mutation of democracy”. Populism is also understood as an ideology that considers society to be ultimately separated into two homogenous and antagonistic groups: the honest, ordinary, people and the corrupt elite. This dichotomous division between good and evil is the main ideological fundament of populism. In the other opinion populism is a socio-technical, purely instrumental manner of using the right to gain or perpetuate public power, finally penal populism is a political tactic oriented towards repressive penal policy. It

Execution of a Prison Sentence. International Standards: The Local Perspective

43

manifests itself in three tendencies—offering simple, immediate solutions, promotion of the offered solutions in mass media, and manifestation of disregard for expert knowledge (Sitarz 2022, pp. 55–5). In criminology, is also asked a question of: Whether making references to the protection of Christian values (as a specific “pre-legislative” measure) is a form of penal populism must be that it is a specific form of penal populism with slightly different characteristics—punitiveness is not its distinctive feature, sometimes the calls for criminalization in this area go in the opposite direction. Is it rational criminalization? From the legislator’s perspective, the answer is that it is, which poses a unique threat to human rights and freedoms (Sitarz 2022, p. 65).

The most often, penal populism is defined simply as a process whereby the major political parties compete with each other to be “tough on crime”. It is generally associated with a public perception that crime is out of control and tends to manifest at general elections when politicians put forward hard-line policies which would remand more offenders into prison prior to sentencing and impose longer sentences.8 It seems that polish normative solutions more and more reflect neoclassical criminology, but also—based on its achievements—use the concept of fair ret-ribution and the concept of social justice to create a penological offer typical of penal populism (Woźniakowska-Fajst and Witkowska-Rozpara 2022, p. 99).

5 Summary To sum up, it may be stated that while at the declarative, formal and legal level, Polish regulations meet most of the standards required by international regulations and recommendations, the practical local conditions may pose increasing threats resulting in the possibility of their violation. Proposed legislative changes to the penal legislation, moving in the direction of increasing punitive measures and the longest possible isolation of convicted persons, do not inspire optimism. It seems that public opinion in terms of legal awareness is insufficiently formed at the level of education and is subject to political manipulation and media disinformation. Crime is a subject on which we are quite easily influenced by emotion, fear and misunderstanding. Legal populism, occurring as an international trend, leads to a situation in which empirical research, statistics, expert opinions, scientists and practitioners are unfortunately relegated to the background or ignored altogether. This is compounded by the state of general anomie resulting from the prevailing epidemic of Sars-Cov-19, which, based on the example of the Polish system, perfectly illustrates the devaluation of law, both in its formal and legislative aspect and, above all, on the grounds of acting individuals and the legal culture connecting them with the established norms.

8

https://www.populismstudies.org/Vocabulary/penal-populism/, accessed on 12/04/2023.

44

P. Wiktorska

References Act of 22nd November 2013 on dealing with persons with mental disorders who pose a threat to the life, health or sexual freedom of others (Journal of Laws 2019, item 2203 as amended) Bąk M, Zbrożyna-Tutak A (2018) Seniorzy w polskim systemie penitencjarnym ze szczególnym odniesieniem do przypadku Zakładu Karnego w Uhercach Mineralnych. Społeczeństwo i Rodzina 57(4):137–147 Ciosek M (2016) Psychologia sądowa i penitencjarna. PWN, Warsaw Dawidziuk E (2013) Traktowanie osób pozbawionych wolności w współczesnej Polsce na tle standardów międzynarodowych. Wolters Kluwer, Warsaw Dawidziuk E (2019) Izolacja od społeczeństwa po odbyciu w pełni kary pozbawienia wolności. Arch Kryminol XLI(1):219 Gerecka-Żołyńska A (ed) (2021) Prawo karne wykonawcze. Wolters Kluwer, Warsaw Gruszczyńska B., Marczewski M., Siemaszko A., Ostaszewski P., Włodarczyk-Madejska J, Klimczak J, (ed) (2021). Atlas przestępczości w Polsce 6. Warsaw: Wydawnictwo Instytutu Wymiaru Sprawiedliwości Grzesiak P (2020) Wykonywanie kary pozbawienia wolności w czasie pandemii Covid 19 – uwagi dogmatyczmnoprawne i socjologicznoprawne. https://palestra.pl/pl/e-palestra/49/2020/ wykonywanie-kary-pozbawienia-wolnosci-w-czasie-pandemii-covid-19-uwagidogmatycznoprawne-i-socjologicznoprawne Hogg R (2022) Rethinking populism and its threats and possibilities. Arch Criminiol XLIV(1): 15–38 Hołda Z (1988) Ochrona godności ludzkiej skazanego w toku odbywania kary pozbawienia wolności. Palestra 32/7(367):114–127 Hołda Z (2007) Koncepcja wykonywania kary pozbawienia wolności według Kodeks Karnego Wykonawczego. Czasopismo Prawa Karnego i Nauk Penalnych 11(1):133–140 Hołda Z, Postulski K (2005) Kodeks karny wykonawczy. Komentarz. Arche, Gdańsk Hołda Z, Postulski K (2008) Kodeks Karny Wykonawczy. Komentarz, https://sip.lex.pl/ komentarze-i-publikacje/komentarze/kodeks-karny-wykonawczy-komentarz-587233668. LEX, Arche Kalisz T (2005) Zasady prawa karnego wykonawczego. In: Bogunia L (ed) Nowa kodyfikacja prawa karnego, vol XVII. Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław Klaus W., Rzeplińska I., Wiktorska P., Woźniakowska-Fajst D., (ed.) 2021. Karierowicze kryminalni? Aktywność przestępcza w dalszych losach nieletnich. Warsaw: Wydawnictwo Instytutu Nauk Prawnych PAN Kuć M (2017) Prawo karne wykonawcze, 3rd edn. C.H. Beck, Warsaw Lelental S (2020) Kodeks karny wykonawczy. Komentarz, 7th edn. C.H. Beck, Warsaw Migdał J, Szymanowski T (2014) Prawo karne wykonawcze i polityka penitencjarna. Wolters Kluwer, Warsaw Morawski L (2002) Wykładnia w orzecznictwie sądów. Komentarz. TNOiK, Toruń Niedźwiecka JD (1994) Cechy temperamentalne, poczucie bezpieczeństwa, koherencji i sensu życia a pozycja osadzonych w nieformalnej strukturze zakładu karnego. Wydawnictwo Uniwersytetu Łódzkiego, Łódź Pawela S (1999) Kodeks karny wykonawczy. Praktyczny komentarz z indeksem rzeczowym. Wolters Kluwer, Warsaw Płatek M (2006) Powrót do wolności, unpublished training material under the ESF Equal Programme, conducted under the “Return to Freedom Coalition” at the Faculty of Law and Administration, University of Warsaw, Warsaw Płatek M (2019) Kreowanie “groźnych, niebezpiecznych, złych”. Arch Kryminol XLI(1):125–217 Podgórecki A (1998) Socjologiczna teoria prawa. Interart, Warsaw RPO (2021a) Umierający w więzieniach. Spotkanie RPO o sytuacji osób w stanie paliatywnym w jednostkach penitencjarnych. https://bip.brpo.gov.pl/pl/content/rpo-o-sytuacji-umierajacychw-wiezieiach-webinar. Accessed 12 Apr 2023

Execution of a Prison Sentence. International Standards: The Local Perspective

45

RPO (2021b) Służba Więzienna podała statystyki kowidowe osadzonych i funkcjonariuszy. https:// bip.brpo.gov.pl/pl/content/rpo-sluzba-wiezienna-statystyki-kowidowe-oadzonychfunkcjonariuszy. Accessed 12 Apr 2023 Sitarz O (2022) Protection on Christian values – penal populism or a rational decision on criminalization? Arch Criminiol XLIV(1):39–76 Stańdo-Kawecka B (2019) Zasada podmiotowego traktowania skazanych w Kodeksie karnym wykonawczym z 1997 roku. In: Nowa kodyfikacja prawa karnego LIV. Acta Universitatis Wratislavientis, vol 3969. Wydawnictwo Uniwersytetu Wrocławskiego, Wroclaw, pp 239–263 Szymanowski T (ed) (2011) Międzynarodowe standardy wykonywania kar, Przegląd Więziennictwa Polskiego. Centralny Zarząd Służby Więziennej, Warsaw, pp 72–73 Szymanowski T (2016) Prawo karne wykonawcze wraz z elementami polityki karnej i penitencjarnej. Wolters Kluwer, Warsaw The Act of 5th August 2022, amending the Executive Penal Code and certain other acts (Journal of Laws 2022 item. 1855) The act of 6th June 1997, the Executive Penal Code, (Journal of Laws 2019, item 676 as amended) Warylewski J (2006) O wybranych funkcjach i celach kary pozbawienia wolności. In: Machel H (ed) Wykonywanie kary pozbawienia wolności w Polsce - w poszukiwaniu skuteczności. Wydawnictwo Uniwersytetu Gdańskiego, Gdańsk Wiktorska P (2010) Czekając na wokandę. Warunkowe przedterminowe zwolnienie młodocianych. Łośgraf, Warsaw Wiktorska P (2014) Warunkowe przedterminowe zwolnienie z odbycia reszta kary pozbawienia wolności jako instytucja polityczno - kryminalna. In: Kwieciński A (ed) Zmiany w prawie karnym wykonawczym w latach 2009–2014. C.H. Beck, Warsaw, pp 197–209 Woźniakowska-Fajst D, Witkowska-Rozpara K (2022) How neoclassical criminology, penal populism and COVID 19 helped to escalate the repressivness of criminal law – the case of Poland. Arch Criminiol XLIV(1):77–106

Paulina Wiktorska is an Assistant Professor at the Department of Criminology in the Institute of Law Studies of the Polish Academy of Sciences in Warsaw, where she completed doctoral legal sciences studies (2008). She is Law graduate at Faculty of Law and Administration University of Warsaw and Sociology graduate at Collegium Civitas in Warsaw. She has lectured criminal law, criminology, social research methodology among others at the University of Warsaw, at the University of Law and Administration in Ostroleka and at the European University of Law in Warsaw, London and Brussels. She implements research grants and gives the academic lectures for doctoral students. Paulina Wiktorska is a member of the European Society of Criminology which aims to bring together in Europe persons actively engaged in research, teaching and practice in the field of Criminology. She is also a member of the Polish Society of Criminology im. Prof. Stanisława Batawii and member of the Editorial Committee of the ‘Criminological Bulletin’. Her research interests and scientific publications mainly concern criminal law, penitentiary law, criminology, domestic violence and the methodology of research conducted in legal sciences.

Rehabilitation vs. Retribution/Repression: An Introduction to Systemic Contradictions in the Czech Penitentiary System Jiří Mertl

Abstract The chapter analyses penitentiary system in Czech Republic that still suffers from cultural contradictions. These contradictions are based on systemic settings consisting of splitting the system to uniformed and civil personnel where only the uniformed personnel are eligible to take decision-making positions, for example CEO of the Prison Service, director of prison etc. The civil personnel are then directed by the uniformed one, which makes paramilitary like organisational culture in the penitentiary system. At the same time, many civil personnel employees have uniformed employment history so they bring repressive culture to the civil positions where the rehabilitative one should play a main role. Drawing on the 89 semi-structured interviews with civil personnel from prisons all over the Czech Republic conducted within the TERAPEUT-VTOS project, I argue that there is a contradiction between rehabilitative and retributive/repressive culture in the Czech penitentiary system, which limits rehabilitative work with imprisoned persons, making them more dangerous after imprisonment, more prone to prisonisation, and more marginalised.

Despite the metaphorical assertions that relationships between staff and imprisoned persons are ‘at the heart of prison life’ (Crewe et al. 2015, p. 317) and that prison staff (and, within the studies, especially the uniformed one) is a ‘beating heart of the entire prison’ (Hacin et al. 2019, p. 54) have become clichés, the prison staff is one of the key elements in prison systems because of its street-level bureaucrat status (Lipsky 2010) and is responsible for applying rehabilitation and human rights values in everyday prison practise (Cracknell 2023). In recent years, there has been research on prison climate and culture in terms of what Alison Liebling (2011) coined as “moral performance” (i.e. how quality of life created within prisons determines their rehabilitative and effective functioning) and in terms of how a specific organisational J. Mertl (✉) Faculty of Humanities, Department of Applied Social Sciences, Charles University, Praha 8 Libeň, Czech Republic e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Czarnecki (ed.), Human Rights Protection and Ius Puniendi, European Union and its Neighbours in a Globalized World 11, https://doi.org/10.1007/978-3-031-41253-0_4

47

48

J. Mertl

culture consisting of prison staff’s values, usually binarily defined either as rehabilitative or retributive/repressive, defines interpersonal interactions and a rehabilitation setting. Qualitative as well as quantitative studies are quite consistent in finding that a positive climate and rehabilitative culture in prison are beneficial and effective for addressing the complex needs of imprisoned persons (Blagden et al. 2016; Brosens 2019; Cracknell 2023; Garland et al. 2009; Kilmer et al. 2023; Lambert et al. 2010, 2014; Lugo 2016). In some studies (Blagden et al. 2016; Garland et al. 2009; Lugo 2016; Melnick et al. 2009), clear orientation on human rights and rehabilitation purposes of prison was positively perceived both by imprisoned persons, who saw a dignified meaning in their sentence, and prison staff, who had the unequivocal objective of their work, which they could build-up on. Rehabilitative culture and a positive climate in prison also support mental health resilience and are related to job satisfaction, organisational commitment, and the prevention of burnout as factors that enhance working experience with imprisoned persons and their chances of successful reentry/resettlement (Garland et al. 2009; Griffin et al. 2012; Lambert et al. 2014; Melnick et al. 2009). However, the staff is quite often put into a tension consisting of fulfilling the security requirements and, at the same time, also rehabilitative ones, ending up in a cultural conflict and possible value dissonance, which is usually, but not always, resulted by the easiest solution, i.e. security first and everything else later (Cracknell 2023; Marti et al. 2017; Melnick et al. 2009). This situation induces employment and role stress, which, on the other hand, has been associated with greater support for repressive/retributive culture and scepticism regarding the successful rehabilitation of imprisoned persons (Kras et al. 2019; Lambert et al. 2010, 2014; Lugo 2016). In this study, I will be focusing on prison culture, which, although interconnected, is not interchangeable with prison climate, as some studies (Day et al. 2012; Lugo 2016) suggest. Prison climate consists of a rather broad spectrum of factors that influence the situation in a prison, for example its size, architecture, physical environment, conditions (temperature, food, free time activities etc.), regulations, interpersonal interactions and so on (Bierie 2012; Johnsen et al. 2011). Prison culture, on the other hand, is a narrower term, signifying interpersonal production and sharing of specific meanings, values, attitudes, and beliefs that are usually, but not exclusively (see Brosens 2019), related to prison staff (Cracknell 2023; Lugo 2016; Melnick et al. 2009; Schoenfeld and Everly 2023). In past studies, several factors having a major influence over the prison culture and values being disseminated were identified. First, the prison managerial positions, especially middle managers, were identified as crucial actors who are responsible for the formal setting of a specific culture in prison and upholding norms and values that come with the culture (Johnsen et al. 2011; McKendy et al. 2021; Schoenfeld and Everly 2023). Second, supervision was identified as a single ‘major force in shaping prison staff attitudes’ (Garland et al. 2009, p. 176; see also Griffin et al. 2012; Lambert et al. 2010). Third, small prisons, structural openness, and flexible communication support quick and quality decision-making, whereas hierarchical decision-making in large prisons based on formal bureaucracy tends to undermine rehabilitative culture

Rehabilitation vs. Retribution/Repression: An Introduction to Systemic. . .

49

and reduce the time that the staff can spend with imprisoned persons (Cracknell 2023; Johnsen et al. 2011). Prison culture then has a direct impact on climate, especially on interactions between staff and imprisoned persons, as the culture determines mutual expectations and the staff’s perception of imprisoned persons and the meaning of their sentences. At the same time, the influence of the culture may be broader, as it has been proven (Cracknell 2023; Johnsen et al. 2011) that smaller prisons are generally better for rehabilitation purposes, so a rehabilitative culture may support the building of smaller prisons. On the other hand, prison climate also indirectly influences the culture, where, for example, prisons with depressive and neglected environment may support the idea that the meaning of a sentence is retributive one, so the harsh conditions are a fair part of this repressions (Kras et al. 2019; Schoenfeld and Everly 2023; Tait 2011), although harsher prison conditions themselves do not necessarily and automatically lead to a poor organisational climate (see Lugo 2016), and designing a prison for rehabilitation purposes does not automatically and necessarily lead to a positive climate (see Viglione et al. 2017); the architecture of the prison can itself disqualify any rehabilitative activities (Cracknell 2023); or the general atmosphere in the work environment may support/undermine the rehabilitative culture (Lugo 2016). The culture-climate nexus, where rehabilitative culture produces a positive climate that, in turn, supports the rehabilitative culture, is sometimes called dynamic security, as it has been proven by numerous studies (e.g. Damsa 2023; Genders and Player 2014; Johnsen et al. 2011; Kilmer et al. 2023) that good relationships between prison staff and imprisoned persons reduce the risk of conflict, support prevention, and induce the rehabilitation process. Contrary to the culture, the climate may be easier to change (Day et al. 2012), since the culture is often institutionalised and deeply-rooted in various processes that must be changed ‘formally’ and this can be very a difficult task. Often (e.g. Cracknell 2023; Damsa 2023; Kilmer et al. 2023; Kras et al. 2019; Schoenfeld and Everly 2023), prison culture is defined as a set of shared values, beliefs, and norms that either support the rehabilitation principle or the repression/retribution principle, whereas, in practise, the staff balances between these two stances, as illustratively Sarah Tait (2011) analysed. Rehabilitative culture is based on the humanistic notion that imprisoned persons are people with some specific needs that must be identified and addressed, and that change in their lives begins and is achieved by a quality of interpersonal interactions in combination with positive motivation, gaining mutual trust, and day-to-day influence. The staff with a rehabilitative culture then sees imprisoned persons as equal human beings who have their own specific lived experiences that need to be perceived and respected in order to induce and maintain the rehabilitation process (Johnsen et al. 2011). A vital part of the rehabilitative culture is also interpersonal interactions and relationships among the prison staff, where mutual trust was identified as a key factor for a properly functioning prison (Damsa 2023; Johnsen et al. 2011; Kilmer et al. 2023). According to some studies (Kras et al. 2019), there is also a connection between rehabilitative culture and commitment to an organisation, and, on the other hand, between repressive culture and cynicism.

50

J. Mertl

Repressive/retributive culture is aptly described by Didier Fassin (2017) by his trope of ‘happy captivity’ based on the imagination of the prison staff that imprisoned persons are better off in prison than at home because they have all their basic needs covered and only lack freedom. Prison is then seen as too humanistic, providing imprisoned persons with more rights, which motivates most of them to repeatedly commit a crime just to get there on vacation. Thus, prison must be tougher and a much more unpleasant place, which should, on the contrary, discourage imprisoned persons from returning. The staff should then make life in prison harder for imprisoned persons (for example by stricter body and cell searches, prohibition of abusive language, or more severe penalties for smoking in no-designated areas etc.), instead of inducing trusted relationships with them (Damsa 2023). At the same time, prison security is perceived in passive terms, where physical barriers, restrictions, military order, and physical/technical means of coercion play a crucial role. Fassin (2017) also stressed how his informants had fantasies about random violence, which can happen anytime, so they must be perpetually on alert, although incidents and conflicts rarely happened at random and were caused by particular situations and staff. McKendy et al. (2021) linked this hyper-vigilance to stressful situations experienced in prison employment and the worsening mental health of the staff. Also, the staff had a feeling that they were less protected by the system than imprisoned persons, who are more trusted, and expressed a nostalgia for the old times when imprisoned persons obeyed the staff, had a strict regime, and had harsh conditions in prison. Thus, ultimately, prison is not, by any means, a rehabilitative institution but a place where sentenced persons should be securely ‘stored’ and punished (Cracknell 2023; Fassin 2017; McKendy et al. 2021; Wacquant 2009a, b). Imprisoned persons are not regarded as equal human beings but as someone who needs to be moralised and coerced to a better behaviour (Lambert et al. 2010), or, in the worst case, not as human beings at all, which Kateřina Nedbálková (2006) expressed in her prison ethnography when she pointed out that the staff discussed intimate matters between themselves in front of imprisoned persons as if they were not there. According to many studies (Garland et al. 2009; Kras et al. 2019; Lambert et al. 2010, 2014; McKendy et al. 2021), the repressive/retributive culture is related to employment stress, burnout, depersonalisation, and general mental ill-being, which may negatively influence the staff’s view of imprisoned persons, who may be perceived as the origin of the discomfort in their prison employment or simply neglected. Participants (prison staff in various positions) in the study by McKendy et al. (2021) pointed out that encountered violence and conflict situations with imprisoned persons, but their colleagues, who committed harassment, discrimination, bullying, and physical aggression, were stated as the major workplace stressor. Due to harms experienced by both imprisoned persons and colleagues, the informants expressed general distrust of anyone around them. A plethora of studies (Cracknell 2023; Damsa 2023; Kilmer et al. 2023; Kras et al. 2019) showed that there is a contradiction between these two cultures. Often, the contradiction is, as Schoenfeld and Everly (2023, p. 232) posed, caused by the ‘security mindset’, which has prevailed from the past, especially among uniformed

Rehabilitation vs. Retribution/Repression: An Introduction to Systemic. . .

51

staff, and is based on the traditional view of prisons as institutions for the detention of sentenced persons. The security mindset then concurs with the contemporary rehabilitation notion. However, the contradiction can also be produced structurally or discursively, as Dorina Damsa (2023) shows via her Danish case, where the uniformed staff was told and learned rehabilitative values (with an accent on trusted interpersonal interactions) in their 3-year training programme, but, due to the neoliberal repressive discourse turn in Denmark, they cannot employ them in prison practise. In a similar regard, Kilmer et al. (2023) showed through the Norwegian case, where the uniformed staff undergo long 2-year training based on rehabilitative culture, that imprisoned persons perceive the staff as trustworthy with regard to dayto-day interactions or even sharing of lived experience, but generally untrustworthy when it comes to a therapeutic process and sharing more sensitive personal experiences and feelings. In some cases, the culture is also determined by the individual histories of the prison staff members. Recently, there has been some attention (Lambert et al. 2014; Moran et al. 2019; Moran and Turner 2022a, b; Turner and Moran 2023) given to the military service history of the prison staff and how this history influences the culture, as, historically, there has been a strong bond between the military and prison (for this reason, even the term of prison-military complex was introduced in the studies). In Britain, it was extrapolated that currently nearly one-third of prison uniformed staff have the military service histories (Moran and Turner 2022b). It was presumed that military history and its values (such as discipline, order, security, a strict sense of hierarchy, and so on) would ‘spill over’ to prison employment and support the repressive/retributive culture. However, the situation is not as straightforward and simple. Lambert et al. (2014) found out that the staff with the military actually had higher levels of positive engagement with the organisation (and, presumably, also with rehabilitative ideals). Similarly, Moran and Turner (2022a) found out that the link between military and repressive values may be a product of stereotyping rather than evidence-based knowledge, as, in their survey, more than half of respondents expressed values and perceptions close to the rehabilitation culture. On the other hand, ‘many’ respondents (the authors do not mentioned any actual numbers) expressed traditional/stereotypical values, such as ‘wearing of a uniform, discipline, and a formal rank structure’ (Moran and Turner 2022a, pp. 406–407). Some respondents then mentioned traditional values that can be used in a rehabilitation process, for example clear goals, responsibility for employees, professionalism, and teamwork. At the same time, the staff had a high level of resilience to employment stress and organisational commitment, which are useful traits in a prison environment (Turner and Moran 2023). Of course, these were only declared via a survey (not interviews), and it is unclear whether and how the respondents also apply positive values also in their employment practice. Many other studies (Cracknell 2023; Ricciardelli 2022; Schoenfeld and Everly 2023; Tait 2011; Viglione et al. 2017) have accented that uniformed staff still has a rather repressive/retributive mindset (without being clear who has or does not have military experience) based on their role and (absence of proper) training (for a contrasting view, see Damsa 2023; Kilmer et al. 2023; Marti et al. 2017), albeit physical and punitive power may

52

J. Mertl

have been weakened and replaced by soft-power measures in some situations (see Crewe 2011). Thus, as can be seen in the case of military service history, the influence of prior individual experience on the prison culture depends on the individual characteristics of relevant persons and the culture and climate in the actual prison system as well as in the particular prisons. The Limitation of contemporary knowledge is that almost all the prison culture studies focus on the uniformed staff (e.g. Cracknell 2023; Crewe et al. 2015; Hacin et al. 2019; Kilmer et al. 2023; Kras et al. 2019; Lambert et al. 2010, 2014; Moran and Turner 2022a; Schoenfeld and Everly 2023), omitting the organisational culture of the specialists or civil staff. There are some exceptions, where the civil staff were secondary informants (Cracknell 2023), a part of the research sample (Griffin et al. 2012; Lambert et al. 2010, 2014; Lugo 2016; McKendy et al. 2021), and a primary focus of the study (Garland et al. 2009). Matthew Cracknell (2023) found out in his research that the civil staff does not necessarily have to have a rehabilitative cultural mindset, especially if the prison climate and structural conditions (such as financing, understaffing etc.) do not fit in. Civil staff was tired of the contradictions and expressed a feeling of apathy regarding the rehabilitative objectives. This study will follow up on these findings and, based on the Czech case, show that the situation is rather more complex and that the specialists’ organisational culture has contradictions going against rehabilitation and, to some extent, also human rights.

1 Introduction to the Czech Penitentiary System The basic setting of the Czech penitentiary system can be found in the study by Jiří Mertl (2023a), whereas in this study we will look more into the systemic and broader characteristics of the system. The Czech Republic (CR) adopted the strategical and conceptual document Koncepce vězeňství do roku 2025 [Penitentiary system conception until 2025], where it is stated that the Czech penitentiary system must be construed on the values of rehabilitation and human rights. Beside the value orientation, the long-term systemic schism between uniformed and civil employees is also mentioned. The schism rests on disproportional positions between the employees, as only the uniformed ones can hold higher management positions in the system and individual prisons. The uniformed staff then makes decisions and takes actions concerning security and repressive measures, as well as rehabilitation programmes. This creates tension because the civil staff feels as not having any say in the decisions, which clearly and directly influence their work (Mertl 2023b). However, as it was analysed (Mertl 2023b), the tension goes beyond the neglect in a decision process since there is a quite deep distrust among the staff, which undermines communication and collaboration. Moreover, the civil staff complained about interferences with the rehabilitation programmes made by uniformed staff, which did not have proper training and often did not understand the principles and benefits of rehabilitation. From a financial and career perspective, the civil staff, contrary to the uniformed one, does not have any career structure or progression, resulting in

Rehabilitation vs. Retribution/Repression: An Introduction to Systemic. . .

53

unequal remuneration and the impossibility for the civil staff to progress their career unless they switch from civil position to the uniformed one. The remuneration of the uniformed employees also benefits from Law 361/2003, according to which all the employees responsible for the state security have a right to receive a special rent after 15 years in the service for the rest of their lives, and the rent even increases after more years in the service. The civil employees, although they are working in similarly demanding conditions, do not have this benefit. At the same time, the service rent has an impact on the occupation of the civil positions, especially correctional case managers. The uniformed staff often switch from the position of correctional officer to correctional case manager because they achieve 15 years of service to be eligible for the rent and want to ‘take a rest’ in a more informal prison position where they, in addition, receive remuneration. This trajectory is important in terms of occupational and prison culture, as there is a presumption that former correctional officers would transfer their values, norms, and beliefs based on the repressive/retributive culture to the case management position. This presumption was supported by the Dirga and Hasmanová Marhánková (2014) study based on interviews with Czech correctional officers who expressed strong repressive/retributive culture inclinations as well as criticism of the contemporary prison system that is, in their eyes, too humanised and a nostalgia for the ‘good old time’ when imprisoned persons had to obey the rules and were disciplined. The contradiction is also well illustrated by the long-term issue of collision between prison employment and therapeutic/counselling programmes (see Mertl 2023a), based on the idea that prison employment, as the ultimate instrument of rehabilitation, should go first and everything else later. This idea is further supported by understaffing and a general insufficiency in the availability of well-targeted and quality therapeutic and counselling programmes. The conflict makes it more difficult for the civil staff to do rehabilitation activities with imprisoned persons (Mertl 2023a), but the situation is problematic also for non-government organisations (NGO), which enter the prisons and participate on rehabilitation, especially in the field of addiction and drug abuse, where they play a key role (Mertl 2022a, b). Nevertheless, besides the practical hardships, the conflict is a symbol, and it is symptomatic of the cultural conflict in the system, where, formally, there is an accent in rehabilitation but, practically, repression/retribution are still prevailing. Thus, there is a cultural contradiction produced and supported on a systemic basis. However, the dividing line of the contradiction is not only between uniformed and civil staff but also among the civil staff itself. The cultural contradictions among the prison specialists and non-uniformed staff responsible for rehabilitation activities are, as has been mentioned, a rather understudied issue. This study aims to fill the gap via the Czech case.

54

J. Mertl

2 Data and Methodology This study draws on data created within the TERAPEUT-VTOS project focused on therapeutic and counselling work with inmates in Czech prisons. The main goal of the project was to find out how work with inmates is done, what the good/bad experiences are, and which problems/obstacles limit the therapy and counselling provided. To achieve this, we have been visiting prisons in teams of two people (altogether, our team had three members), where we conducted semi-structured interviews with specialised (civil) prison personnel, attended therapy groups whenever possible, and wrote fieldwork notes from our participatory observations. For this study, the main source of empirical material will be interviews. The final sample consisted of interviews from 19 prisons. Our sample has included all types of prisons: both secure (with all the security levels represented) and high-security ones, with and without standardised and therapeutic programmes and communities, with and without newcomer entry sections, with and without custody and detention, and the prisons were geographically situated all across the CR (for more information about the types of prisons, see Mertl 2023a). This variability of the sample increases the reliability and credibility of the research and its identified findings. We managed to secure 89 interviews with 20 educational administrators, 18 psychologists, 16 correctional case managers, 15 group therapists/ counsellors, 13 social workers, four substance abuse counsellors, two imprisoned persons recreation coordinators, and a chaplain. The average age of the informants was over 46 years (median 48 years), and they had been employed in the Czech prison system for 14.5 years on average (median 15 years). We used a purposive sampling strategy, but because prisons are heterotopic institutions where access is restricted, we also had to rely on the prison staff in terms of the selection of the individual informants within each prison. We gave prison staff instructions on whom we would like to have an interview, and the staff, based on these instructions, addressed potential informants and offered them participation in the project, so the purposive sampling was combined with the voluntary and, possibly, convenience sampling. This process may have created a bias in the sense that we ended up with a sample containing informants generally favourable towards rehabilitation. This was (at least partially) confirmed by the number of informants (48; over half of them) who had an experience with therapeutic/counselling work in prison or straight did these activities, whereas, generally, therapeutic/counselling programmes constitute only a fraction of activities done with imprisoned persons (Jiřička and Kejřová 2015; Jiřička and Prokešová 2012; Mertl 2023b), so also the staff with the experiences mentioned forms a minority in the global number of employees. There were six main topics of conversation at first: (1) daily work routine, problems the personnel must cope with, and the needs of imprisoned persons; (2) the situation in prison; (3) therapeutic and counselling programmes and cooperation with NGOs and other entities; (4) specialised therapeutic sections and therapeutic communities; (5) the general idea of open prisons and the Czech project of open prison; (6) re-entry/resettlement in the CR. After visiting several prisons, we

Rehabilitation vs. Retribution/Repression: An Introduction to Systemic. . .

55

found that the personnel often wanted to discuss the absence of supervision and the availability of further professional education, so we have added it as the seventh main topic. The issue of prison culture was not itself a specific topic in the interview guide, but it emerged out of the informants’ narratives when talking about the abovementioned issues. All the interviews were transcribed, and MAXQDA software was used to code the transcriptions. The coding process took place at several levels and in several cycles (as was introduced, for example, by Charmaz 2006; Saldaña 2009). The coding process itself was guided by the qualitative content analysis method represented by Philipp Mayring (2000), which is distinctive because it combines deductive and inductive approaches. Thus, in the first cycle, the data were coded deductively in accordance with the ‘big’ main topics, and in subsequent cycles, these big themes were modified and extended to accommodate partial, more focused sub-themes, which were identified inductively. This way, the specific narratives containing inclinations either towards a rehabilitative or repressive/retributive culture were identified and coded. Furthermore, for better grasping and categorising of the identified findings on prison culture, the case analysis, which allows connecting the findings into illustrative and explanatory ideal cases, was employed. In the rest of the study, selected findings regarding the Czech prisons’ cultural contradictions will be introduced.

3 Rehabilitation Versus Repression/Retribution: The Case of Czech Prison Civil Staff1 Throughout the data analysis, three ideal types of prison culture were identified: therapeutic/supportive, repressive-disciplinary, and reserved-pragmatic. Most of the informants inclined (i.e. they expressed decisively the values linked to the actual cultural type and, where applicable, only very marginally the values tied up with the other types) to one of these types. 54 informants were then inclined towards the therapeutic/supportive culture; 22 towards the repressive-disciplinary culture; and one towards the reserved-pragmatic culture. The rest of the informants (12) were ambivalent and had a combination of the cultures (they more often or evenly expressed values interconnected with two or all the cultures). These informants can then be perceived as divisive helpers/punishers, depending on the combination of cultures. In the rest of this section, the ideal culture types will be introduced. The therapeutic/supportive culture was typically connected to the belief that rehabilitation activities (therapeutic/counselling programmes) have a great benefit for imprisoned persons and should constitute the main core of the activities done with them. The benefit relates to other values, which were accented by informants,

1

All the names of informants were anonymised; old Czech names that are no longer used were chosen as pseudonyms.

56

J. Mertl

namely trust, a needs-focused approach, and dignified and equal communication with imprisoned persons. This interplay of all the values was nicely coined by Hoducha: [. . .] [therapeutic] group, with its dynamics taking place, pushes them [imprisoned persons] in the right direction a lot. [. . .] They come and say: ‘I don’t have any problems, I used [drugs] a little, I don’t have problems to stop.’ And then, when they see the group dynamics, they begin to reconsider: ‘Well, actually, I do have a problem. I actually don’t know what I will do after the sentence. I have a fear I won’t manage, and I want to arrange some postrelease therapeutic programme.’ The group actually pushes him/her to it. [. . .] We are not a substitute drug treatment centre, and we always say we are showing them a path to be taken; if they choose to take the path, that’s up to them. But if someone needs to go underneath and find out the essence [of his/her drug abuse], then we have individual sessions for dealing with their personal pains.

Hoducha explains that therapeutic communities and their group sessions can change imprisoned persons’ sceptical and distrustful perceptions towards anything that would deal with their rehabilitation needs. At the same time, the therapeutic team openly and motivationally communicates with imprisoned persons about their options, leaving the final decision up to them, which furthermore supports trustful rehabilitation relationships. The team also has a needs-focused approach and takes interested imprisoned persons to individual sessions where their issues can be worked on. Hoducha also points out another key value in the therapeutic/supportive culture: susceptibility to imprisoned persons’ traumatisation and mental health problems, which was mentioned by many informants. Dobran offers an illustrative excerpt: [. . .] We have to get to know the [imprisoned] person in order to gain his/her trust. We can call in dynamic security. That is, if I have an established relationship with the person and we have an opportunity to get to know each other on the prison level, I’m able to work with his/her risk factors. But in my view, currently, prison employment is prioritised over the [dynamic] security, not only ours, but also of the public. If the person was able to rob his/her family and be violent because of an addiction, we need to work with the personality and give him/her some self-reflection, and after that, we may begin finding an employment [. . .] But they don’t even do any lucrative jobs [in prison]; they do low-qualified jobs, which are useless in terms of change and demotivating.

According to Dobran, traumatisation is a vehicle for all the problems that caused the sentence; thus the traumatisation and lived experience should be worked with in the first place both because of the well-being of the person and his/her family (so there is a humanitarian and empathetic reason) and because of dynamic security (a pragmatic reason). Dobran then refers to the issue of collision between prison employment and therapeutic/counselling programmes mentioned earlier in the chapter, criticising the repressive settings of the Czech prison system that are oriented on static security and the short-term exploitation of imprisoned persons instead of rehabilitation. The critique of the repressive settings was pointed out by a number of other informants, especially in the context of the non-rehabilitation culture of their colleagues (both uniformed and civil ones), interferences during therapeutic/counselling programmes by the prison regime, the impossibility to implement some therapeutic strategies (for

Rehabilitation vs. Retribution/Repression: An Introduction to Systemic. . .

57

example, reflection of drug relapse), and uniformed decision-making management responsible for this repressive and disciplinary setting. The rest of the values or factors linked to the therapeutic/supportive culture were mentioned by a smaller number of informants. These are structural issues, which imprisoned persons came from, contributing to or causing their imprisonment, collaboration with NGOs, motivational interviewing, managing the workload, and responsiveness of therapeutic/counselling programmes. Thus, a typical informant with the therapeutic/supportive culture in the sample had a deep belief about the benefits of therapeutic/counselling programmes and made a tremendous effort to secure trustful and openly communicative relationships with imprisoned persons, focusing on their needs and lived experience, which then supported dynamic security. The collaboration was based on a humanistic and empathetic vocation, both towards individuals and the public. Apart from that, (s)he recognised structural issues that had caused marginalisation of imprisoned persons and continue to be a major obstacle in reentry/resettlement, sometimes collaborating with NGOs in this matter. Occasionally, (s)he used motivational interviewing, recognised the workload and managed it, and made programmes responsive for imprisoned persons. The repressive-disciplinary culture was very tightly knit with responsibilisation, a perception that imprisoned/released persons should have an inner motivation when they apply for assistance or help themselves altogether (see for example King 2014; Stevens 2013). Responsibilisation was furthermore interconnected with a Czech prison system term of ‘purposeful motivation’, which refers to a moralising belief that when an imprisoned person has a motivation to collaborate with the staff, it is because (s)he wants some kind of benefit and his/her interest is not sincere or authentic, as Bogija pointed out: [. . .] they [imprisoned persons] are overmotivated. [. . .] I visited Slovakia, and there is completely different approach. We have taken the path of humanisation, Norway and the like, whereas Slovakia went the repressive way. I think that the recidivism rate is the same. [. . .] But I think we should make prisons places where nobody would like to come back. Not a place [. . .] where, when entering, the first thing they say is: ‘I want you to take care of my ID, I want this, I want that.’ And they don’t care when they are not in prison. Here, they know we come to them and take care of everything [. . .] Not all of them are like this, some are decent and grateful, but those, who are coming back, which is the majority recently, know that there is a service for them here.

Bogija, apart from criticising imprisoned persons for insincere motives when asking for help and irresponsible behaviour, opened several other issues typical of the repressive-disciplinary culture in the sample. First, the plea for more punitive and restrictive prisons that would be intimidating and discouraging to return, so, in this sense, repression is the main instrument for rehabilitation. A few other informants metaphorised prisons as a hotel where imprisoned persons like to return to rest up. Second, the contemporary prison system is too humanised, which means that rules, order, and discipline have deteriorated, resulting in bad behaviour by both the imprisoned persons and staff, as well as high rates of recidivism. The excessive

58

J. Mertl

humanisation of prisons was a very sensitive issue, as this rather emotional excerpt documents: And then some twenty-something youngster starts to squeak about human rights, that’s. . . [. . .] There are no human rights here. Here, the rights are restricted by the law. Nobody is beaten up in here; nobody is. . . But some of them take this as an adventure [. . .] (Nedrah).

Nedrah speaks about imprisoned persons in a dehumanising manner, as if they do not have a right to question anything. In this sense, some informants expressed a nostalgia for ‘good old times’ when imprisoned persons knew their place and did not complain about anything. In some cases, the nostalgia was fuelled by a fear for personal safety, which was understood in terms of static security. Informants fantasised about various scenarios, in which they were violently attacked or killed, although nobody mentioned any actual experience with physical violence. Some informants rationalised their fears with messages from other prisons, referring to attacks on prison staff but without any relevant context. In some cases, fear for personal safety resonated with distrustfulness towards imprisoned persons as another strong value, resulting in a reluctance to even establish a formal professional rehabilitation relationship with them due to their strategic behaviour and lies, as Ubislav expressed: [. . .] you work with defective people, so to stay alive here, you have to be permanently alert because believing convicted anything. . . Everything must be filtered [. . .] They constantly try to beguile you, deceive you, force you somewhere, and you must defend yourself.

In the Ubislav perception, the day-to-day interactions with imprisoned persons are metaphorized as a perpetual war. The last factor that was reproduced by the informants is the belief that rehabilitation simply does not work, except for prison employment, as was nicely put by Chrza: [. . .] most of them [imprisoned persons] need a job. It’s one of the most important factors there is. They make money, repay debts [. . .], learn the order that they must get up in the morning, be there until the end, mustn’t be boozing or doping, and they value free time they have then. [. . .] there is much bigger positive change than when they lie down on the bed for three years, doing nothing, then attend somewhere some programme for five weeks, and then lie again. Work is the priority.

Occasionally, the informants also stated that they had to deal with nonsensical requests from imprisoned persons, ignored or neglected structural issues, viewed surveillance of released persons as a solution for successful reentry/resettlement, and wanted to have bigger means to punish imprisoned persons. A typical representative of the repressive-disciplinary culture deeply believed that imprisoned/released persons are responsible for their own rehabilitation, while the only thing they need is negative motivation and a strict regime to internalise daily order. (S)he did not trust imprisoned persons, fearing for their personal safety and their motivations, taking them as insincere and inauthentic. In his/her perception, prisons are overly humanised and should be reverted to institutions that would provide a tougher experience for imprisoned persons. Occasionally, (s)he did not believe in rehabilitation at all. Rarely, they viewed imprisoned persons in a

Rehabilitation vs. Retribution/Repression: An Introduction to Systemic. . .

59

dehumanised way, took their needs as nonsensical requests, ignored structural conditions and lived experiences, and wanted more discipline and punishment both in prison and after release. The reserved-pragmatic culture was characterised by the recognition of individual issues during the reentry/resettlement process, causing a high recidivism rate and the necessity to make institutional and structural changes, especially regarding the material conditions of imprisoned/released persons, and a dysfunctional penal policy that guides sentencing ineffectively. However, the concern for the issues was purely pragmatic, as the goal was to lower the recidivism rate and, thus, the workload of the staff. Nerad and Unislav represent this well: Someone [imprisoned person] is more pretending, someone is more authentic, but then there is no post-penitentiary continuity in working with them. When someone is released from prison, we always simply state: ‘Well, he will be back soon.’ [. . .] I don’t know if we can do anything more here under these circumstances (Nerad). If we want them not to come back, the social system must be set up differently. They must be given a chance. [. . .] there should be more opportunities, even to change the social environment completely. There are people who have a working family, [. . .] but they fell into dope and, as soon as they come back to their environment, they end up in that again (Unislav).

Nerad then expressed the typical perception that the penitentiary work with imprisoned persons is functioning well and the problem is in the post-prison situation. At the same time, he mentioned, again, the motivation and intention of imprisoned persons, which was another vital part of the culture. However, the informants with the reserved-pragmatic culture moralised less often about strategic and purposeful behaviours and perceived it as a bothersome, yet workable, factor. Rehabilitation was perceived as beneficial, largely in terms of prison employment, motivation through benefits, or, more rarely, extramural activities focused on work, but only for some imprisoned persons, typically sentenced for the first time. The repeatedly sentenced persons did not deserve to be worked with because the informants saw it as a pointless loss of their time, as the persons would return to prison anyway. Rehabilitation was eroded by the prisonisation effect, seen almost exclusively in terms of losing self-serving competencies, which was identified as problematic for reentry/resettlement. The informants identified relationships as some way to work with imprisoned persons, but they kept the interactions strictly formal and were occasionally reserved or indifferent towards imprisoned persons and their needs, as the relationship can be abused. A few informants also recognised the lived experience of imprisoned persons but mixed this perception with responsibilisation. Overall, a typical informant with the reserved-pragmatic culture was practically oriented towards addressing the material needs of imprisoned persons and minimising the recidivism rate via rehabilitation, which was seen mostly in terms of prison employment and motivation through benefits, and institutional and structural changes aimed at penal policy optimisation. In his/her belief, rehabilitation should be focused on imprisoned persons sentenced for the first time, whereas multiple sentenced persons do not deserve to be collaborated with, as criminal activities are their lifestyle that cannot be changed by rehabilitation. Rehabilitation

60

J. Mertl

is seen to be disrupted by the strategic and purposeful behaviour of imprisoned persons, but this is a workable factor, and losing of self-serving capacities because of the prisonisation effect. Finally, (s)he sees the interactions with imprisoned persons strictly formally, even with a reservation or indifference, because of the possibility of abusing the professional relationship by imprisoned persons.

4 Discussion and Conclusion Based on the data presented, it is obvious that there is a conflict between various types of organisational cultures in the Czech prison system. The conflict influences the perception of human rights and the rehabilitation process in prisons, as some staff is not entirely convinced that rehabilitation has significance and/or should be taken as a set of complex measures to address the needs of imprisoned persons. At first sight, the conflict may be seen as a marginal factor, but it must be reminded that the sample had a selection bias in the sense that selected informants had a greater inclination towards rehabilitation values. Thus, generally, the conflict may be bigger and have a deeper impact. Also, it is interesting that most informants had relatively clearly set values and corresponding cultures, whereas only 12 of them were ambivalent about their values. The cultural conflict is symptomatic of a long-term structural rupture between the uniformed and civil staff within the Czech prison system. However, the individual trajectories of informants are also interesting, as, out of the informants who had the repressive-disciplinary culture, 16 had preceding experience outside the prison system, 12 from the prison system, and for two, it was their first employment. 11 informants with experience outside the prison system had been employed in heterotopic organisations (namely the police, healthcare, education, army, and probation service). Seven informants with previous prison experience were employed as correctional case managers and four as correctional officers. Thus, it seems that individual trajectory may play an important role since most of the informants having the repressive-disciplinary culture had either experience from heterotopic organisations, where the repressive values are reproduced, or prison employment positions linked to repressive values (the Czech correctional case managers, contrary to the name of the position, usually do not participate in the rehabilitation process but rather secure the basic logistics in prisons and discipline imprisoned persons when needed). Thus, it seems that cultural discrepancies found in studies with correctional officers are similar for specialists and civil prison staff as well, but this needs to be analysed more, as this chapter was rather an introduction to the prison organisation culture issue.

Rehabilitation vs. Retribution/Repression: An Introduction to Systemic. . .

61

References Bierie DM (2012) The impact of prison conditions on staff well-being. Int J Offender Ther Comp Criminol 56(1):81–95. https://doi.org/10.1177/0306624X10388383 Blagden N, Winder B, Hames C (2016) “They treat us like human beings”—experiencing a therapeutic sex offenders prison: impact on prisoners and staff and implications for treatment. Int J Offender Ther Comp Criminol 60(4):371–396. https://doi.org/10.1177/ 0306624X14553227 Brosens D (2019) Prisoners’ participation and involvement in prison life: examining the possibilities and boundaries. Eur J Criminol 16(4):466–485. https://doi.org/10.1177/ 1477370818773616 Charmaz K (2006) Constructing grounded theory: a practical guide through qualitative analysis. SAGE Cracknell M (2023) Trying to make it matter’: the challenges of assimilating a resettlement culture into a ‘local’ prison. Criminol Crim Just 23(2):165–182. https://doi.org/10.1177/ 17488958211037469 Crewe B (2011) Soft power in prison: implications for staff–prisoner relationships, liberty and legitimacy. Eur J Criminol 8(6):455–468. https://doi.org/10.1177/1477370811413805 Crewe B, Liebling A, Hulley S (2015) Staff-prisoner relationships, staff professionalism, and the use of authority in public- and private-sector prisons. Law Soc Inq 40(2):309–344 Damsa D (2023) ‘This is not what I signed up for’ – Danish prison officers’ attitudes towards more punitive penal policies. Punishment Soc 25(2):430–448. https://doi.org/10.1177/ 14624745211068870 Day A, Casey S, Vess J, Huisy G (2012) Assessing the therapeutic climate of prisons. Crim Justice Behav 39(2):156–168. https://doi.org/10.1177/0093854811430476 Dirga L, Hasmanová Marhánková JH (2014) Nejasné vztahy moci – vězení očima českých dozorců. Sociologický Časopis 50(1):83–105. https://doi.org/10.13060/00380288.2014.50.1.31 Fassin D (2017) Prison worlds: an ethnography of the carceral condition. Polity Garland BE, Mccarty WP, Zhao R (2009) Job satisfaction and organizational commitment in prisons: an examination of psychological staff, teachers, and unit management staff. Crim Justice Behav 36(2):163–183. https://doi.org/10.1177/0093854808327343 Genders E, Player E (2014) Rehabilitation, risk management and prisoners’ rights. Criminol Crim Just 14(4):434–457. https://doi.org/10.1177/1748895813502500 Griffin ML, Hogan NL, Lambert EG (2012) Doing “people work” in the prison setting: an examination of the job characteristics model and correctional staff burnout. Crim Justice Behav 39(9):1131–1147. https://doi.org/10.1177/0093854812442358 Hacin R, Fields C, Meško G (2019) The self-legitimacy of prison staff in Slovenia. Eur J Criminol 16(1):41–59. https://doi.org/10.1177/1477370818764831 Jiřička V, Kejřová K (2015) Úvod do zkoumání efektivity intervenčních programů v českých věznicích II. Vězeňská služba České republiky Jiřička V, Prokešová E (2012) Úvod do zkoumání efektivity intervenčních programů v českých věznicích. Vězeňská služba České republiky Johnsen B, Granheim PK, Helgesen J (2011) Exceptional prison conditions and the quality of prison life: prison size and prison culture in Norwegian closed prisons. Eur J Criminol 8(6): 515–529. https://doi.org/10.1177/1477370811413819 Kilmer A, Abdel-Salam S, Silver IA (2023) “The uniform’s in the way”: navigating the tension between security and therapeutic roles in a rehabilitation-focused prison in Norway. Crim Justice Behav 50(4):521–540. https://doi.org/10.1177/00938548221143536 King S (2014) Desistance transitions and the impact of probation. Routledge Kras KR, Dmello JR, Meyer KS, Butterfield AE, Rudes DS (2019) Attitudes toward punishment, organizational commitment, and cynicism: a multilevel analysis of staff responses in a juvenile justice agency. Crim Justice Behav 46(3):475–491. https://doi.org/10.1177/0093854818810857

62

J. Mertl

Lambert EG, Hogan NL, Altheimer I, Jiang S, Stevenson MT (2010) The relationship between burnout and support for punishment and treatment: a preliminary examination. Int J Offender Ther Comp Criminol 54(6):1004–1022. https://doi.org/10.1177/0306624X09348585 Lambert EG, Barton-Bellessa SM, Hogan NL (2014) The association between correctional orientation and organizational citizenship behaviors among correctional staff. Int J Offender Ther Comp Criminol 58(8):953–974. https://doi.org/10.1177/0306624X13489510 Liebling A (2011) Moral performance, inhuman and degrading treatment and prison pain. Punishment Soc 13(5):530–550. https://doi.org/10.1177/1462474511422159 Lipsky M (2010) Street-level bureaucracy: dilemmas of the individual in public services (30th anniversary expanded ed). Russell Sage Foundation Lugo M (2016) Measuring organizational climate in prisons. J Contemp Crim Justice 32(4): 357–382. https://doi.org/10.1177/1043986216665528 Marti I, Hostettler U, Richter M (2017) End of life in high-security prisons in switzerland: overlapping and blurring of “care” and “custody” as institutional logics. J Correct Health Care 23(1):32–42. https://doi.org/10.1177/1078345816684782 Mayring P (2000) Qualitative content analysis. Forum Qual Soc Res 1(2):unpaginated McKendy L, Ricciardelli R, Konyk K (2021) Trauma in the correctional field and the correctional worker habitus. Incarceration 2(2):263266632110217. https://doi.org/10.1177/ 26326663211021727 Melnick G, Ulaszek WR, Lin H-J, Wexler HK (2009) When goals diverge: staff consensus and the organizational climate. Drug Alcohol Depend 103:S17–S22. https://doi.org/10.1016/j. drugalcdep.2008.10.023 Mertl J (2022a) První průběžná evaluační zpráva k projektu “Systémové zajištění péče pro vězněné uživatele drog a její následná kontinuita po propuštění”. APAS Mertl J (2022b) Sociální práce v zajetí koronaviru: Případ programů pro osoby ve výkonu a po výkonu trestu odnětí svobody. Sociální Práce 2022(6):40–55 Mertl J (2023a) Prison employment and its conflict with therapeutic and counselling programmes: the experiences of Czech prison personnel. Eur J Criminol 20(2):447–467. https://doi.org/10. 1177/14773708211012624 Mertl J (2023b) Závěrečná výzkumná zpráva z projektu Terapeutická péče o lidi vevýkonu trestu odnětí svobody. Západočeská univerzita Moran D, Turner J (2022a) Drill, discipline and decency? Exploring the significance of prior military experience for prison staff culture. Theor Criminol 26(3):396–415. https://doi.org/10. 1177/13624806211031248 Moran D, Turner J (2022b) How many prison officers are ex-military personnel? estimating the proportion of armed forces leavers within the prison workforce of England and Wales. Howard J Crime Justice 61(2):148–166. https://doi.org/10.1111/hojo.12450 Moran D, Turner J, Arnold H (2019) Soldiering on? The prison-military complex and ex-military personnel as prison officers: transition, rehabilitation and prison reform. Howard J Crime Justice 58(2):220–239. https://doi.org/10.1111/hojo.12316 Nedbálková K (2006) Spoutaná Rozkoš: Sociální (re)produkce genderu a sexuality v ženské věznici. Sociologické nakladatelství. http://catalog.hathitrust.org/api/volumes/oclc/174253473. html Ricciardelli R (2022) Ethnographic experiences of participating in a correctional officer training program: an exploration of values, ethics, and role conflict. Ethnography:146613812110690. https://doi.org/10.1177/14661381211069045 Saldaña J (2009) The coding manual for qualitative researchers. Sage Schoenfeld H, Everly G (2023) The security mindset: corrections officer workplace culture in late mass incarceration. Theor Criminol 27(2):224–244. https://doi.org/10.1177/ 13624806221095617 Stevens A (2013) Offender rehabilitation and therapeutic communities enabling change the TC way. Routledge

Rehabilitation vs. Retribution/Repression: An Introduction to Systemic. . .

63

Tait S (2011) A typology of prison officer approaches to care. Eur J Criminol 8(6):440–454. https:// doi.org/10.1177/1477370811413804 Turner J, Moran D (2023) Bridging the gap? Ex-military personnel and military–civilian transition within the prison workforce. Armed Forces Soc 49(1):70–90. https://doi.org/10.1177/ 0095327X211039879 Viglione J, Lerch J, Rudes DS, Taxman FS (2017) Big stick management: misconducts as discipline within a correctional reentry facility. Crim Justice Behav 44(2):163–183. https://doi.org/10. 1177/0093854816668917 Wacquant L (2009a) Prisons of poverty. University of Minnesota Press Wacquant L (2009b) Punishing the poor. The neoliberal government of social insecurity. Duke University Press

Jiří Mertl Ph.D. is interested in criminology, social justice, critical social work, and marginalisation. He is currently focused on social work and counselling with imprisoned and released persons framed by critical social work, that is how structural and cultural issues contribute to producing criminality and how the criminality may be alleviated by structural, cultural, and institutional changes. Currently, he is associate professor/senior lecturer at the Charles University in Prague, Faculty of Humanities, Department of Applied Social Sciences. Address: Pátkova 2137/5, 182 00 Praha 8 – Libeň. E-mail contact: [email protected] or [email protected].

Restorative vs Punitive Approach. Eight Fundamental Principles of Juvenile Delinquency Prevention Elena Mujoska Trpevska and Gordana Lažetić

Abstract The chapter will identify and analyse juvenile delinquency prevention’s fundamental principles since every younger generation is faced with their own rules and dynamic lifestyle. Having in mind the “four D’s” model: diversion, de-judicialization, de-institutionalization and due process, the elaboration and analyzes will contribute toward defining the role and assessing the effectiveness of social, family, educational and other assumptions for the protection of children. The focus will be directed toward the role of the poverty, education, free time and peers influence toward juvenile delinquency. Some of those factors shall be addressed as the primary roots and reasons for the manifestation of youth’s antisocial behavior. An important issue regarding juvenile delinquency is the stereotype that only children from divorced marriages, one-parent families and children without parental care, manifest troubled behavior, so the article will offer data and arguments toward avoiding this stereotype when analyzing juvenile delinquency. There is a need to emphasize that the Republic of North Macedonia is defined as welfare and modern country where humane and inclusive social development principles are implemented. At the same time, there is a necessity for taking care of the socially vulnerable categories, including the children at risk. Social policy, which covers all aspects of child protection, is an unavoidable part of the juvenile delinquency protection and prevention policies. National strategic documents regarding the prevention of juvenile delinquency will be, also analyzed. Within the chapter, there will be available statistical data, trends, and rates relevant to the topic of interest.

E. M. Trpevska (✉) Center for Strategic Research “Ksente Bogoev”, Macedonian Academy of Sciences and Arts, Skopje, North Macedonia e-mail: [email protected] G. Lažetić Faculty of Law “Iustinianus Primus”, University of Ss. Cyril and Methodius, Skopje, North Macedonia © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Czarnecki (ed.), Human Rights Protection and Ius Puniendi, European Union and its Neighbours in a Globalized World 11, https://doi.org/10.1007/978-3-031-41253-0_5

65

66

E. M. Trpevska and G. Lažetić

1 Defining Juvenile Delinquency The development of modern society and the latest scientific and technological discoveries and achievements have led to changes in people’s lifestyle and mindset. Every younger generation is faced with new rules of a completely changed and dynamic lifestyle in its own way. Contrary to the general belief (Binder et al. 2001, p. 25), the state criminal system should not categorize every act of disobedience as juvenile delinquency. That is neither necessary, nor essential, especially considering that when they reach the age of adolescence, a large percentage of the youth take a different pathway, other than the one of violating the law (O’Mahony and Campbell 2006, p. 85). The main social and economic factors, primarily the Internet and the mass media, as well as the individual factors, which reflect the personality of a minor, are in a constant, dynamic, mutual relation and mutual influence. According to Kambovski (2004, p. 1020), these factors have different impact in different phases of a minor’s development, but family as well, can play a vital role in the prevention of negative influence of those factors at some of the early phases. The most significant issue in defining juvenile delinquency is that juvenile criminal laws and juvenile justice remain in the shadow of adult criminal laws. It is obvious that repression and retribution, the main features of the adult criminal system, are strongly emphasized in juvenile procedures. In the last 30 years, a great number of experts and politicians, and especially the public throughout Europe, have been loudly criticizing the existing system of tackling juvenile delinquency, labelling the existing sanctions as mild and inefficient, and the educational-corrective measures as ineffective and contributing to a culture of unaccountability (Radić 2017, p. 84). Such criticism has been creating tendencies towards harsher punishments and strengthening of the repressive and punitive policies against minors. On the other hand, there are opposite opinions about the need of a new, modern criminal justice system for minors, which should not be based on the idea of retributive justice. Instead, it should be replaced with the idea of restorative justice, with implementation of alternative sanctions and development of different forms of extra-institutional treatment in daily centres (Kambovski et al. 2018, p. 141). Most of the European countries choose the middle way and upgrade the existing juvenile justice systems where imprisonment is an exception (Radić 2017, p. 85), and preference is given to the protection of minors through care, assistance and supervision in the educational process (Božičević-Grbić and Vidlička 2011, p. 685). According to the Working group on Juvenile Justice (European Society of Criminology) young people should be held responsible for their delinquent acts, but all sanctions and interventions should be focused on their rehabilitation and reintegration in society and meet the specific needs which impede their growing up into responsible citizens (UNDOC 2018). Before explaining the development of the Macedonian juvenile justice system, it is necessary to define the concept of juvenile delinquency.

Restorative vs Punitive Approach. Eight Fundamental Principles of. . .

67

Juvenile delinquency is described in a variety of ways. One of those is educational neglect (Arnaudovski and Velkova 2017, p. 559), which means depriving young people of care and education, which implies the absence of a conscious, targeted, and appropriate influence on their development and education, all of that being circumstances that young people fall in involuntarily and in unawareness. Closely related to this concept is the term social maladjustment (ibid.), which is used in psychology to denote various types of deviations in young people’s behavior, but its basic meaning is a failure of a specific person or group to adapt to social conditions and relationships. Similarly, although rarely used, the concept of bad social behavior (ibid.) serves to explain a phenomenon that is not described but is morally valued and evaluated. For comparison, in England and Wales (Graham and Moore 2006, p.65), the term antisocial behaviour is increasingly used in legislation, but there is no precise definition for it. The lack of precise legal definition of antisocial behaviour certainly makes it difficult to determine the sanctions for juveniles. Finally, there is no precise definition for the term juvenile delinquency as well. What can be considered (in its etymological sense) as common for all of the abovementioned notions is the fact that a perpetrator is a person with a specific set of individual and social factors, with the latter having a stronger influence and a decisive role (Arnaudovski and Velkova 2017, p. 567).

2 The Treatment of Children in the Criminal Justice Systems Modern society tends to view young generations in a rather ambivalent way. Throughout the twentieth century’s final decades, countries that provided unending care and protection for minors prevailed. When minors manifested delinquent behaviour, enhanced educational treatment and extra-institutional measures were considered the appropriate, if not the key answer to the problem. Such decisions were applied and respected until there was a steep rise in the number of offenses and misdemeanors committed by minors. Croatia’s legal framework is another illustration of this statement. According to Kos (2006), institutional measures are applied as ultima ratio, which means that when choosing sanctions, preference is always given to extra-institutional measures. Simultaneously, the principle of subsidiarity is emphasized in the application of educational measures for children. The measures that require the juvenile to be separated from his or her environment and family will not apply if it can be established that another measure, primarily educational in nature, can accomplish the educational goal (Kos 2006, p. 810). On the other hand, however, the frequency of serious offenses committed by minors causes serious concern, condemnation and anger among public, even more so when it comes to young recidivists. In these cases, “young delinquents who deserve

68

E. M. Trpevska and G. Lažetić

650

600 550

610 578

589

554

500

525

450

total 2017

2018

2019

2020

2021

Fig. 1 Reported juveniles by types of criminal offences in Republic of North Macedonia (2018–2020). Source: State Statistical Office. Link: http://makstat.stat.gov.mk/

understanding, education and treatment” is quickly replaced by “young reoffenders” or “young chronic offenders” (Kerner et al. 2008, p. 173–191). The situation in North Macedonia is not any different. In 2019 total of 2035 children were referred to social work centers. The number was slightly lower in 2018, with total of 1689 children.1 During 2017, in Kumanovo alone, 267 minors were referred to the Centre for Social Work due to delinquency, and 260 and 326 minors were registered as offenders in 2016 and 2015, respectively. There is similar trend in reported juveniles committing various types of criminal offenses, as the number is significantly higher in 2021 and 2022, as shown in Fig. 1. With the aim of preventing this rising tendency, the competent institutions envisage the implementation of the “Skills for Adolescence” Programme, which aims to raise the level of knowledge on the prevention of violence, peer conflicts, alcohol, drugs and psychotropic substances abuse, and the development of social-emotional intelligence of adolescents with the involvement of teachers, professors, school expert teams and parents.2 Nowadays, in the countries where the legal age for penal and legal liability is strictly defined and respected, there is a hidden pressure to abandon those strict views. Thus, modern criminal justice systems make exceptions from the centuriesold tradition of doli incapax. Instead, fines are imposed on young children if the court finds that the “perpetrator” has a morally deformed character and the crime is committed under extremely aggravating circumstances (Kerner et al. 2008, pp. 173–191). The character of the criminal act supplies the age of the offender— Malitia supplet aetatem. The question remains open: will the Macedonian juvenile criminal system continue to develop as an educational law, whose subject is the care and education of juveniles, or will it develop in the direction of respecting the juveniles’ fundamental

1

Annual work Report of the State Council for prevention of juvenile delinquency 2018 and 2019. Link: http://dspdp.com.mk/, last visit 16.12.2018. 2 “A total of 267 minors committed crimes in Kumanovo in 2017”, Lokalno, 6.12.2018. Source: https://lokalno.mk/vkupno-267-maloletnitsi-izvrshile-prestapnishtvo-vo-kumanovo-vo-2017godina/, last visit 26.04.2023.

Restorative vs Punitive Approach. Eight Fundamental Principles of. . .

69

rights and freedoms, with all guarantees in the criminal procedure, but, at the same time, insisting on their liability. In other words, this part of the criminal law is dominated by the legal dilemma which is reflected upon all the issues of the status and treatment of minors: to emphasize the principles of justice and the legal guarantees or to accept the idea of treatment that requires greater flexibility of the categorical terms, defined based on sociological, criminological, and psychiatric concepts. Today, an optimal model that reconciles the two opposing approaches is the “four D’s” model: diversion, de-judiciarisation, de-institutionalisation, due process: avoidance of a criminal procedure, de-judiciarisation, de-institutionalisation and due process guarantees of equitable procedure (Kambovski 2004, p. 1030). The actions of minors which are categorized as delinquent, do not differ in their objective consequences from the same actions committed by adults. However, when it comes to minors, these actions are labelled differently, “the perpetrators” are considered as persons who still develop their personality and we put efforts for them to receive a different treatment. Minors may violate moral norms and manifest asocial behaviour or commit a misdemeanour (Arnaudovski and Velkova 2017, p. 571), but it becomes serious when they appear as perpetrators of socially dangerous behaviour, that is, incriminated acts. And that happens rather often.

3 Fundamental Principles of Juvenile Delinquency Prevention There is research related to juvenile delinquency which show a worryingly high number of perpetrators under the age of 15 (Zermatten 2006). This delicate age causes additional problems for the lawmakers and the completion of the mosaic called “legal and institutional framework” for perpetrators of crimes, whose behavior is due to “troubled” adolescence (Zermatten 2006, p. 299). The gap becomes deeper when these children commit serious crimes, with which neither the parents nor the school and the environment can cope. In 2018, a comprehensive study on juvenile delinquency, the status of children at risk, and the living conditions of children in conflict with the law was conducted in the Republic of North Macedonia. Eight fundamental principles were established as the basis for Macedonian (and any other modern) society’s fight for the protection, care, assistance, and development of minors who have violated the country’s legal norms. The first principle refers to the existence of social, family, educational and other assumptions for the protection of children, which correspond to the general conditions for ensuring the humane and sustainable development of the Macedonian society, in general (Kambovski et al. 2018, p. 12). If family, school and social relationships are kept under control, it can seriously reduce the risk of a child’s criminal behaviour and influence his future. Society renews and continues its development primarily through child care and protection. Child protection and

70

E. M. Trpevska and G. Lažetić

development, as the highest and undeniable societal interest, has been raised to the level of constitutionally guaranteed fundamental right.3 The exogenous factors (family, poverty, education, free time and environment) are the main reason for manifestation of antisocial behavior of youth. Family disorganization may occur in many forms and for different objective and subjective reasons. It may occur due to incomplete families, when one of the parents is missing (due to death, illness and long absence, absence due to work, imprisonment etc.), due to divorce, anachronistic marriages, intergenerational conflicts, etc. The stereotype that only children coming from divorced marriages, one-parent families and children without parental care, manifest troubled behavior, has long been outdated (Buzarovska-Lažetić and Nanev 2015, p. 49). For example, in the period 2007–2017, there was an increase in the number of divorces by 40.7%,4 and in the same period the number of children who live with both parents, and who are convicted and sentenced, remained the same with total number of 300 (80%).5 In 2021 compared to 2011 there was an increase in the number of divorces by 12.0% and still the number of convicted children who live with both parents, is quite high 332.6 Therefore, children coming from troubled marriages and families suffer the most serious implications. Those children are deprived from care, protection and education, which negatively affects their development and becomes a more serious social problem. This is the time for school to be included. In the developed European countries, the Netherlands for example, schools offer help to parents in conflicted marriages and advise them how to overcome the misunderstandings, and they are also directly involved in the education of children (Van der Laan 2006, p. 160). In North Macedonia, the frustrations arising from difficult living conditions, lack of place to stay or difficult economic conditions, are firstly manifested on the partner, then on the children. Additionally, the child’s inclusion and acceptance in the classroom, and their academic success, i.e. the low level of education, the poor results and the failure to attend classes, can contribute to the appearance of criminal behaviour. The quality of education and the lack of appropriate education staff in schools are an additional factor (compare Buzarovska-Lažetić and Nanev 2015, p. 51). Furthermore, it is impossible not to mention the influence of the environment and the peers. If the child grows up in a community with low economic development, unsafe neighbourhood with violence and poverty on one hand, and if it is surrounded by peers with problematic understandings, habits and behaviour on the other hand, the chances of assimilating in delinquent environments are very high. We should

3

Article 40–42 of the Constitution of the Republic of North Macedonia, Official Gazette of the Republic of Macedonia, no. 52/1991; 1/1992; 1/1992; 31/1998; 31/1998; 91/2001; 91/2001; 84/2003; 84/2003; 107/2005; 107/2005; 3/2009; 3/2009; 13/2009; 49/2011; 49/2011; 6/2019 and 6/2019. 4 Macedonia in Figures, State Statistical Office 2018, p. 13. 5 Statistical review 2.4.18.07(898) 2018, p. 130. 6 North Macedonia in Figures, State Statistical Office 2022, p. 13.

Restorative vs Punitive Approach. Eight Fundamental Principles of. . .

71

refer to the Macedonian Constitution and respect the constitutional provisions according to which it is a fundamental human right of every child to be provided with social conditions for their comprehensive development, upbringing and education in a healthy family and in the wider environment, which implies the duty of the state to create assumptions for the realization of this right (Kambovski et al. 2018, p. 12). We may as well accept some good practices from developed countries. For example, the USA have developed a programme called “delinquency prevention” based on serious theoretical and recognized research analyses (see Loeber and Farrington 2000, and Patterson and Yoerger 1993). Delinquency prevention is regularly applied in the penal policy in the USA (Bishop and Decker 2006, p. 23) and this may be followed as a good example.7 The second principle determines the role of the state in the field of education, care and development of the young population, as its natural and main role. The Republic of North Macedonia is defined as a welfare state,8 and by emphasizing its welfare function, apart from its democratic character, the Constitution determines the basic principles of the Macedonian country as a modern country based on the principles of humane and inclusive social development, where the care for the socially vulnerable categories, among which are the children at risk as well, reflects the social solidarity, and at the same time, motivates its strengthening. Solidarity for children, as a general concern of the society as a whole, is Durkheim’s key assumption for strengthening social cohesion (see more in: Kambovski et al. 2018, p. 13). The Law on Child Protection adopted in 20139 contains the same. Article 2 paragraph 3 clearly reads that the state, as well as the local self-government units, undertake to provide appropriate financial assistance for parents regarding support, raising, care and protection of children and organizing and providing development of institutions and child protection services. This Law stipulates that the state shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.10

7 While some legislations determine long-term institutional and educational measures for juvenile perpetrators, the US Congress has approved funding for “delinquency prevention” programmes. Programmes and funds are divided into two groups: some are for early intervention, while others are for young people who have already begun to manifest delinquent behaviours. Read more in: Bishop and Decker 2006, pp. 22–24. 8 Article 1 of the Constitution of the Republic of North Macedonia, Constitution of the Republic of North Macedonia, Official Gazette of the Republic of Macedonia, no. 52/1991; 1/1992; 1/1992; 31/1998; 31/1998; 91/2001; 91/2001; 84/2003; 84/2003; 107/2005; 107/2005; 3/2009; 3/2009; 13/2009; 49/2011; 49/2011; 6/2019 and 6/2019. 9 Law on Child Protection, Official Gazette of the Republic of Macedonia, no. 23/2013, 12/2014, 44/2014, 144/2014, 10/2015, 25/2015, 150/2015, 192/2015, 27/2016, 163/2017, 21/2018, 198/201, 104/2019, 146/2019; 275/2019 and 311/2020. 10 Art.1 and 5, Law on Child Protection, Official Gazette of the Republic of Macedonia, no. 23/2013, 12/2014, 44/2014, 144/2014, 10/2015, 25/2015, 150/2015, 192/2015, 27/2016, 163/2017, 21/2018, 198/201, 104/2019, 146/2019; 275/2019 and 311/2020.

72

E. M. Trpevska and G. Lažetić

The third principle refers to children’s rights as special fundamental human rights and freedoms. The increasingly extensive international legislation on children’s rights, starting with the UN Convention on the Rights of the Child since 1989, backed by a set of international standards, is a result of several specificities of the status of children’s rights. On one hand, the need to emphasize their protection arises from the fact that childhood and adolescence are periods of the human life when people are exposed to various threats to their personality and development, from which one cannot protect himself/herself. On the other hand, many freedoms and rights, in addition to their existence in the objective sense, also presuppose subjective consciousness or a sense of their own values, which is not developed to the required extent in childhood. In January 2007, the UN Committee on the Rights of the Child, which monitors the implementation of the Convention on the Rights of the Child,11 issued the General Comments no. 10 (which was later revised, no. 24201x),12 in which it requires from the 93 signatory states to enforce juvenile justice in their own countries in accordance with the Convention. These include, primarily, the development and implementation of an understandable juvenile justice law, with particular attention to its prevention, wider application of alternative punishments and full acceptance of the view that institutional measure pronouncement should be ultima ratio and in case it is pronounced, to be so for the shortest possible period (Doek 2009, p. 20). For the freedom and the rights of the child to be respected, it is not necessary for the child to be aware of them, but it is supposed that they always have them. The assumption of their existence in each particular case, when there are circumstances that indicate that they are threatened with threat or injury, leads to the assumed duty of the state to protect them in all possible situations and in all spheres of social life. The consequence of the objective nature of children’s rights is the rejection of any action of the child’s consent to be restricted or injured (as stated in Law on Child Protection). It is child protection and the provision of certain rights, means and forms of child protection, that is the main objective of the Law. The Law stipulates that child protection is an organized activity, based on the rights of the child, as well as on the rights and obligations of the parents for family planning and on the obligations of the state and the local self-government units to conduct a humane population policy. Child protection is achieved by providing conditions and a level of living standard that corresponds to the physical, mental, emotional, moral, and social development of children.13

11

See more on https://www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIndex.aspx, last visit 16.12.2018. 12 Available on: General Comment No. 24 (201x), replacing General Comment No.10 (2007), Children’s rights in juvenile justice, https://www.ohchr.org/_layouts/15/WopiFrame.aspx? sourcedoc=/Documents/HRBodies/CRC/GeneralComment10.docx&action=default& DefaultItemOpen=1, last visit 16.12.2018. 13 Art. 2 par. 1 and 2, Law on Child Protection, Official Gazette of the Republic of Macedonia, no. 23/2013, 12/2014, 44/2014, 144/2014, 10/2015, 25/2015, 150/2015, 192/2015, 27/2016, 163/2017, 21/2018, 198/201, 104/2019, 146/2019; 275/2019 and 311/2020.

Restorative vs Punitive Approach. Eight Fundamental Principles of. . .

73

In the verdict of the European Court of Human Rights in the case Sahin v. Germany14 the court underlines the importance of the respect of the rights of the child and the standards that each country listed in the UN Convention on the rights of the child, should strive to achieve (read more about this in Božičević-Grbić and Vidlička 2011, p. 684). The fourth principle includes the international and European standards on the rights of the child, as well as the international legal norms stipulated in the international conventions which are a complementary part of the juvenile justice system. This means that, all international instruments which contain provisions on the rights of the child, must be ratified in accordance with the Constitution of the Republic of North Macedonia and be considered as part of the internal legal order. Such instruments cannot be changed by law. In the pursuit of balance between the concept of welfare and the concept of justice and equity, juvenile criminal law is strongly influenced by international norms and standards on juvenile special rights. Regardless of the numerous innovations in the system of sanctions, there is a high level of agreement about the assessment that the issue of juvenile rights remains neglected in the criminal justice reform and that the discrepancy with the universal rights has increased (Kambovski 2004, p. 1030). Some of the international norms and standards, contained in numerous international documents, are crucial to the profile of juvenile criminal justice. Some of the most important documents, in addition to the Convention on the Rights of the Child, are as follows: the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) of 1985; the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules) of 1990; the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) of 1990; and the recommendations of the CoE, especially the document “Social Reactions to Juvenile Delinquency” R (87) 20 (1987). The constant advancing of norms and standards in the field of children’s rights and child protection is the most explicit expression of the determination of the international community to create new international legal order, which, as a universal perspective of the modern society, shall be focused on its future creators. They are the centre of the new culture of human freedoms and rights and the humane development of society (Kambovski et al. 2018, p. 14). The fifth principle refers to the national policy in the field of children’s rights and child protection. Contrary to the definition of politics as “the art of the possible” or as a decision-making activity in the field of “unlimited possibilities”, which implies broad freedom of political activity and decision-making, policies regarding development, education, freedom, rights and social protection and other aspects of raising the young generation in society, are predetermined by factors that limit the freedom of their creation and decision-making. These are, primarily, the factors imposed by the general development policies of the society as a whole, which aim to ensure stable conditions for constant humane and sustainable social development (national,

14

Sahin v. Germany, (30,943/96) [2003] ECHR 340.

74

E. M. Trpevska and G. Lažetić

economic, demographic, population, educational, scientific and technological, etc.). All the basic development policies in society are summarized through the common factor concerning human resources, current and future, as the main development factor. Social policy, which covers all aspects of child protection, is a necessary complementary part of the development policies, which can give total positive effects if they are followed by appropriate policies regarding raising children, extending the space of their rights and their protection. Hence, the state policy in the field of child development and protection is directly determined by the universal norms and standards on the rights of the child. The sixth principle is the concept of justice for children, a legal concept in its evolutionary stage, which started after the adoption of the Law on Juvenile Justice in 2007. At the same time, this Law introduced a completely new approach in dealing with children and minors, starting from the principles on which the Convention is based, the UN documents on the methods that should be represented in the treatment of children and juveniles, the prevention of juvenile delinquency, as well as the implementation of the recommendations of the Council of Europe. The Law on Juvenile Delinquency was a successful sublimate of provisions that include two fields: juvenile justice system and child welfare (Buzarovska-Lažetić and Nanev 2012, p. 34). At its current stage of development, contained in the Law on Justice for Children adopted in 2013,15 a certain, but still unsatisfactory, progress has been achieved in the inauguration of a radically new approach of society to the problems of children at risk and children in conflict with the law, their development and the protection of their freedoms and rights (Kambovski et al. 2018, p. 15–16). The categorization of children in different groups, based on their age, and later on the severity of the crime and the sanction predicted thereof, but most importantly, based on the mental and physical state of the child, and above all, their ability to understand the consequences of their actions, is in the essence of the system of justice for children (Buzarovska-Lažetić and Nanev 2015, p. 104). Depending on the stated assumptions for the children, various sanctions are also provided depending on their age and the severity of the committed crime. A child who at the time of committing the act, which by law is defined as a criminal act or misdemeanor, has not reached the age of 14, a sanction determined by this Law cannot be applied. Against a child at risk of up to 14 years of age and a child at risk older than 14 years of age, the prescribed measures for assistance and protection that are of interest to the child and his upbringing and development shall be applied. Against a child at risk of up to 14 years of age and a child at risk older than 14 years old, measures for assistance and protection shall be applied, only when the Centre for Social Work assesses that the risk situation affects the development of the child’s personality and proper upbringing.16

15

Law on Justice for Children, Official Gazette of the Republic of Macedonia, no. 148/2013, 152/2019 and 275/2019. 16 Art. 20–23, Law on Justice for Children, Official Gazette of the Republic of Macedonia, no. 148/2013, 152/2019 and 275/2019.

Restorative vs Punitive Approach. Eight Fundamental Principles of. . .

75

The Law on Justice for Children abandons the rigid legal approach in the treatment of these categories of children which involves neutralization or marginalization measures with the aim of protecting society. The main idea of the Law is exactly the opposite—that such children should be protected from the negative influences of society and its contradictions regarding their proper development. Therefore, the Law on Justice for Children transforms the attitude of the society towards children, setting a firm legal framework for the guarantees of their rights, filled with measures of assistance, support and protection that correspond to the highest standards of social, educational and other policies. Contrary to its main idea, which is fully oriented towards “children’s defence” from negative social influences as a priority, the idea of “defending society” from “troubled” children still prevails in the practical application of the Law (Kambovski et al. 2018, p. 104). The seventh element is an institutional framework which involves the institutions working in the field of children’s rights and child protection, in times when the Republic of North Macedonia is going through a difficult political and national crisis. The crisis includes the crisis of the institutions, whose reasons are identified and cover a relatively broad scope of exercising the functions of the state, political, economic and legal system. That includes stagnation of economic growth, wrong distribution of social wealth and wrong policies in the spending of the budget funds, systemic corruption and organized crime, which consequently have the weakening of values and the loss of the integrity of institutions. Following the disrespect of the principle of the rule of law, general unlawfulness, lack of responsibility and accountability in the exercise of state functions and activities of public interest, etc. The institutional crisis impacts most directly the position of the institutions working in the field of justice for children—the centres for social work, juvenile courts, correctional institutions and the existence of alternative institutions. The marginalization of the institutions working in the field of justice for children is reflected in the insufficient financial support, incomplete and inadequate staffing, lack of supervision and coordination and lack of responsibility and accountability, and disavowal of the legal norms and international standards for juvenile justice (Kambovski et al. 2018, p. 104). The eighth principle is the promotion of a modern concept of juvenile justice by advancing the concept of deinstitutionalization. In September 2018, the National Strategy for Deinstitutionalization in the Republic of North Macedonia 2018–2027 “Timjanik”17 was adopted along with the Action Plan of the Ministry of Labour and Social Policy of the Republic of North Macedonia.

17 It is mentioned, in the preface of the Strategy, that it is titled “Timjanik” in honour of the inhabitants of the village of Timjanik, within the Municipality of Negotino, who supported the opening of a small group home for children with intellectual disabilities in their community, during the final phase of the document (summer 2018) Despite the initial caution, the inhabitants of Timjanik accepted and welcomed their new neighbours, thus becoming an example of an inclusive community which offers equal opportunities for everyone. The Strategy is available at https://mtsp. gov.mk/content/pdf/strategii/Strategii%202018/Strategija_deinstitucionalizacija_Timjanik_201 8-2027.pdf, last visit 26.04.2023.

76

E. M. Trpevska and G. Lažetić

Putting the focus on extra-institutional treatment of children at risk and children in conflict with the law compared to the institutional treatment, means accepting the thesis that finding solutions to the problems of children should be of concern to the society as a whole. At international and at EU level, deinstitutionalization is recognized as the best way to provide help and support for children and adults through social care. Deinstitutionalization is defined as closing the institutions and simultaneous development of social services in the community. It is a process of integrated planning for transformation of the institutions, reducing their capacity and/or their elimination, with simultaneous establishment of services in the community, whose function is based on the human rights’ standards. The process of deinstitutionalization includes: – change of relationship between professionals and beneficiaries, – obtaining new social roles, inclusion of beneficiaries and their active engagement in the decision-making for care and support, in accordance with their needs, – transfer of the power from experts, professionals and institutions towards beneficiaries – change in attitude (epistemology) towards long-term care.18 This does not decrease the responsibility of the state and its institutions to plan, support, organize, and control the system of measures of support, assistance and protection of children outside the institutional treatment, which by nature is associated with deprivation of a different kind and, is therefore incompatible with the requirement for social inclusion of children. Where certain categories of children (with mental disabilities, perpetrators of serious crimes) require the need of institutional treatment, such treatment should be based on several principles: to be the last resort when all possibilities for extra-institutional treatment are exhausted; to be organized as treatment with dominantly preventive components and with possible deprivation measures reduced to the minimum; to “mimic” a freedom treatment and to comply with the highest universal norms and standards of institutional treatment.19

National strategy for deinstitutionalization in Republic of Macedonia 2018–2027 “Timjanik” Ministry of Labor and Social Policy Skopje, 2018, p. 6. 19 National strategy for deinstitutionalization in Republic of Macedonia 2018–2027 “Timjanik” Ministry of Labor and Social Policy Skopje, 2018, p. 6. 18

Restorative vs Punitive Approach. Eight Fundamental Principles of. . .

77

Fig. 2 Convicted children by type of criminal offences and sex, by year (2017–2020). Source: State Statistical Office. Link: http://makstat.stat.gov.mk/

4 The Status of Children Who Have Been Convicted of Breaking the Law According to Macedonian official statistics in 202020 as shown in Fig. 2, 350 children were convicted for breaking the law. One of which aged 14–16 years for the most serious crime, a murder. Six children aged 14–16 years were convicted for bodily harm and 5 for grievous bodily harm. When it comes to children aged 16–18 years, total of 27 children were convicted for crimes against life and body out of which 1 for murder, 1 for threatening with a dangerous instrument during a brawl or a quarrel, 1 for participation in a brawl, 9 for grievous bodily harm and 15 for bodily harm. The same year total of 35 children were convicted for act of violence. In 2019, the picture was slightly different. With 304 children convicted, the total number of convicted children was lower, but the number of convicted children for murder was higher, with two children committing the crime. One aged 14–16 years old, and one 16–18 years. Fourteen children were convicted for the crimes of bodily harm and grievous bodily harm, respectively. Two for participation in a brawl and 6 for threatening with a dangerous instrument during a brawl or a quarrel. Interestingly, there was no child who was convicted for the act of violence in 2019. In 2018 comparably, there were 330 convicted children who committed different criminal offences. Most of them, total of 44 children were convicted for crimes against life and body, out of which 5 for murder. Ten children were convicted for crimes against human health out of which 8 for unauthorized production and release for trade of narcotics, psychotropic substances and precursors. Definitely the highest 20

Source: State Statistical Office, link: https://makstat.stat.gov.mk/PXWeb/pxweb/en/MakStat/ MakStat__Sudstvo__ObvinetiOsudeniDecaStoriteli/550_SK4_Mk_T31_ml.px/table/ tableViewLayout2/?rxid=46ee0f64-2992-4b45-a2d9-cb4e5f7ec5ef, last visit 26.04.2023.

78

E. M. Trpevska and G. Lažetić

number of children convicted of property crimes, 188 in total, 120 of which were convicted of aggravated theft.

5 Conclusion Following in the footsteps of other European countries, the Republic of North Macedonia established an advanced level of deinstitutionalization of children and changed normative documents intended to regulate the process of juvenile social protection. It has been observed that, in order to implement the deinstitutionalization process, it is necessary to develop services at a local level and alternative forms of social protection. These goals may be achieved through empowering families, as well as through providing support for the young people who leave the institutions (post-penal assistance), including the private and the non-governmental sector in the service providing etc. Additionally, it is necessary to develop different forms of non-institutional treatment through daily centres, whose function must be fixed and secured, both, in financial and personnel terms, by law and types of treatment in “group families” of approximately 6–8 children who need medical assistance and protection or who need to leave the institution and to be prepared to live with a family. Despite the changes in the legislation, after the adoption of the Law on Juvenile Justice in 2007 and the Law on Justice for Children in 2013, as well as the laws in the field of child protection, there is no significant progress in the treatment of children at risk and children in conflict with the law as a marginalized category. The rate of children who are accused of committing serious crimes and then convicted to serve a penalty, is getting higher every year. The laws’ ineffective implementation, which keeps their treatment below the level required by international norms and standards on children’s rights, is primarily the result of insufficient institutional preparedness for their implementation. This also reflects inconsistency in state policies regarding funding, staffing, and the creation of other conditions for the development of appropriate prevention, institutional, and extra-institutional treatment measures.

References Arnaudovski Lj, Velkova T (2017) Social Pathology. 2nd Amended ed, Shtip Binder A, Gilbert G, Bruce DD (2001) Juvenile delinquency: historical, cultural & legal perspectives. Routledge Bishop DM, Decker SH (2006) Punishment and control: juvenile justice reform in the USA. In: International handbook of juvenile justice. Springer, New York, pp 3–35 Božičević-Grbić M, Vidlička SR (2011) Reforma maloljetničkog kaznenog prava I sudovanja. Hrvatski ljetopis za kazneno parvo I praksu 18(2):679–715

Restorative vs Punitive Approach. Eight Fundamental Principles of. . .

79

Buzarovska-Lažetić G, Nanev L (2012) International documents for the implementation of juvenile justice, Modern trends in the treatment of juveniles. SPPDM, Kavadarci Buzarovska-Lažetić G, Nanev L (2015) Criminal treatment of children at risk and in conflict with the law. Skopje Doek J (2009) The UN convention on the rights of the child. In: Reforming juvenile justice. Springer, New York, pp 19–31 Graham J, Moore C (2006) Beyond welfare versus justice: Juvenile justice in England and Wales. In: International handbook of juvenile justice, pp 65–92 Kambovski V (2004) Criminal law - general part. Culture, Skopje Kambovski V, Lažetić G, Nanev L, Gruevska-Drakulevski A, Maljanovski K, Mujoska-Trpevska E (2018) Analysis of the situation in the institutions for accommodation of children at risk and children in conflict with the law in the Republic of Macedonia. Macedonian Society of Penology, Skopje Kerner HJ, Reich K, Coester M, Weitekamp EG (2008) Migration background, group affiliation, and delinquency among endangered youths in a south-west German city. In: Van Gemert F, Peterson D, Lien I-L (eds) Street gangs, migration and ethnicity. Willan, Portland, pp 173–191 Kos J (2006) Izvršavanje maloljetničkih sankcija. Hrvatski ljetopis za kazneno pravo i praksu 13(2): 807–865 Loeber R, Farrington DP (2000) Young children who commit crime: epidemiology, developmental origins, risk factors, early interventions, and policy implications. Dev Psychopathol 12(4): 737–762 O’Mahony D, Campbell C (2006) Mainstreaming restorative justice for young offenders through youth conferencing: the experience of Northern Ireland. In: International handbook of juvenile justice, pp 93–115 Patterson GR, Yoerger K (1993) In: Hodgins S (ed) Developmental models for delinquent behavior. Sage Publications, Inc, pp 140–172 Radić I (2017) Hrvatski sustav maloljetničkih sankcija: trenutačno stanje i prijedlozi za promjenu. Hrvatski ljetopis za kaznene znanosti i praksu 24(1):83–115 Van der Laan PH (2006) Just desert and welfare: juvenile justice in the Netherlands. In: International handbook of juvenile justice, pp 145–170 Zermatten J (2006) The Swiss Federal Statute on Juvenile Criminal Law. In: International handbook of juvenile justice, pp 295–307

Further Readings Annual work Report of the State Council for prevention of juvenile delinquency, 2018 and 2019. http://dspdp.com.mk/ United Nations Office on Drugs and Crime (UNDOC). Introductory handbook on the prevention of recidivism and the social reintegration of offenders. Revised version 2018. Link: https://www. unodc.org/documents/justice-and-prison-reform/18-02303_ebook.pdf Macedonia in Figures, State Statistical Office 2018. Link: https://www.stat.gov.mk/Publikacii/ MakBrojki2018_en.pdf Macedonia in Figures, State Statistical Office 2022. Link: https://www.stat.gov.mk/ publikacii/2022/MK-brojki-2022-en.pdf

80

E. M. Trpevska and G. Lažetić

National strategy for deinstitutionalization in Republic of Macedonia 2018–2027 “Timjanik” Ministry of Labor and Social Policy Skopje, 2018. Link: https://mtsp.gov.mk/content/pdf/ strategii/Strategii%202018/Strategija_deinstitucionalizacija_Timjanik_2018-2027.pdf State Statistical Office, 2017–2020. Link: http://makstat.stat.gov.mk/ Statistical review 2.4.18.07(898), 2018. Link: https://makstat.stat.gov.mk/PXWeb/pxweb/en/ MakStat/MakStat__Sudstvo__ObvinetiOsudeniDecaStoriteli/775_SK4_Mk_T40_ml.px/table/ tableViewLayout2/?rxid=46ee0f64-2992-4b45-a2d9-cb4e5f7ec5ef

Elena Mujoska Trpevska is a Senior Research Fellow at the Center for Strategic Research at the Macedonian Academy of Sciences and Arts. She got her PhD degree in 2017. In 2019 she was a lecturer at the Faculty of Law at UACS for undergraduate and master studies on criminal law subjects and since 2022 she is a assistant professor at the Faculty of Law in the University “Goce Delchev”- Shtip. In 2020 she passed the bar exam. Dr. Mujoska Trpevska was a member of the working groups of the Ministry of Justice in the Republic of North Macedonia for drafting the Strategy for Reform of the Judicial Sector with an Action Plan (2017), amending the Law on Execution of Sanctions (2018) and amending and codifying the Criminal Code (2019–2021). She is the author and co-author of a series of papers published in relevant domestic and international publications and has participated in many national and international conferences. In her work, she has been the coordinator of numerous scientific and research projects, which mainly deal with criminal law, penal law reform, penitentiary law, conditions in penitentiary institutions, human rights protection, hate crime and hate speech, etc. Dr. Elena Mujoska Trpevska is an active member of the NGO community, and since 2017 she is President of the Macedonian Society of Penology. Gordana Lažetić is a full-time professor of Criminal Procedure Law at the Faculty of Law “Iustinianus Primus”, University Cyril and Methodius in Skopje, North Macedonia. She also teaches criminology, penology and juvenile justice. Prof. Lažetić is the Head of the Institute for Criminal Law at the Faculty, the President of the Association for Criminal Law and Criminology of Macedonia, the President of the State Council on Juvenile Delinquency and a member of the Ethics Subcommittee on Social Sciences at the Macedonian Academy of Sciences and Arts. As a representative of the academic community, she is a member of the Council for monitoring the implementation of the National Strategy for Judicial Reform as a Governmental body. In her nearly two-decade-long academic career, she has published 10 textbooks, over 30 brochures and expert analyzes, more than 100 articles, and has participated in over 120 domestic and foreign projects. She is a member of international editorial boards in more than 15 professional and scientific journals. During her career, she was on a study visit at the Max Planck Institute in Freiburg, the Institute for Social Studies in the Netherlands, Northwestern University in Chicago, USA, as well as at the European Center for Judges and Lawyers (EIPA) Luxembourg.

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges for Prison Reform Guillermo E. Sanhueza

Abstract Chile currently exhibits high levels of inequality in a variety of domains, including but not limited to income distribution, elementary and secondary educational system, quality of healthcare, urban segregation, an increasing number of neighborhood taken by drug lords and, overall, an absence of state in these territories. These societal characteristics and dynamics are speedily impacting prison life and challenging the prison system as never before. In this regard, the landscape of human rights in Chilean prisons has evolved in recent years, and many aspects have improved in comparison to a decade ago. Examples of improvement have to do with a greater “human rights awareness” by the Ministry of Justice and the prison administrations; human rights are now a topic in official discourses; there have also been organizational changes to protect and promote human rights inside the prison system (such as the creation of a specialized HR unit under the direct supervision of the national director); sincere efforts to improve the training for guards and officers, among others. Based on a variety of sources of information including quantitative data (administrative records and survey information), qualitative reports and secondary sources, this chapter will review advances, setbacks and challenges for implementing prison reform in light of a human-rights agenda, by trying to always keep in mind this dynamic relation between major society and prisons and the common human-rights challenges.

1 Introduction In Latin America high levels of inequality coexist with important percentages of the population still living in poverty, inhabiting highly segregated, socially-excluded urban areas of big cities (Zmerli and Castillo 2015; Mascareño 2014; Urquieta et al. G. E. Sanhueza (✉) Loyola University of Chicago, School of Social Work, Chicago, IL, USA e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Czarnecki (ed.), Human Rights Protection and Ius Puniendi, European Union and its Neighbours in a Globalized World 11, https://doi.org/10.1007/978-3-031-41253-0_6

81

82

G. E. Sanhueza

2017). In addition, the region is one with the highest homicide rates in the world (Bergman 2020; Muggah and Tobón 2018) accompanied by penal populism that claims for more, harsher punishment (Morales 2012). Altogether, it is not that surprising that prison systems in the region had received no much attention, suffering from an historical abandonment by national states (Arrarás et al. 2015; Dammert and Zúñiga 2008). Taking all of these elements into account, why keep talking about human rights of the incarcerated or prisons in Chile would be important, deserving a chapter in this book? My argument is threefold: prisons have to do with human dignity and basic human rights (Coyle 2003); social justice, as they usually hold disadvantaged members of society (Fundación Paz Ciudadana 2016; Wacquant 2001); and public safety, because they may contribute to prevent or reduce recidivism (Sanhueza et al. in press; Auty and Liebling 2020; Harding 2014; Petersilia 2011). While some have argued that the Chilean prison system is in better shape than its neighbors (Mertz 2015), others have highlighted that many problems seriously affect prisons, such as overcrowding and poor infrastructure (Espinoza et al. 2014), corruption and mistreatment by guards (Sanhueza and Pérez 2019; INDH 2016), violence among fellow inmates (Sanhueza et al. 2020), scarce program access (Espinoza et al. 2014), and a pervasive penal populism (Morales 2012). Indeed, most of individuals behind bars will eventually be released. Thus, society should think twice in terms of how societies want those individuals back into society when they get out and return to the free environment (Petersilia 2011). Supposedly, the experience of incarceration should prepare individuals so that, once their debt to society is fulfilled, they will be better equipped to return, in a non-criminal way. In current prison environments, however, rehabilitation is very problematic (Sanhueza and Brander 2021; Arrarás et al. 2015; Zúñiga 2010). In addition, a more human prison can stop or slow down the advance of organized crime. Some studies carried out mainly in Brazil have underlined that when states assume the rhetoric of the “harsh hand” and retracting, thus, its role with inmates and prisons, state’s place begins to being occupied by the organized crime, which strengthens inside prison walls and, then, irradiates to neighborhoods in the outside; the Primeiro Comando da Capital [PCC] is often cited as a case study of this (Dias 2011; Dias and Darke 2016). Besides, some studies indicate that when conditions of confinement offer ‘dignity’, these conditions are associated with a decrease in future recidivism (Auty and Liebling 2020; Sanhueza 2021) as well as better, safer working conditions for their own prison personnel (Coyle 2003). Although there is no consensus about the effectiveness of prisons as a deterrence tool, most countries continue to resort to incarceration as a way to respond to problems of insecurity, linked to the idea that prisons perform a symbolic social function of punishment, regardless of their effectiveness in reducing crime. In terms of prison population, the Chilean system currently houses about 45,000 individuals, distributed in 90 prison facilities throughout the country, with an incarceration rate of 230 inmates (per 100,000 inhabitants) (Gendarmería 2023). It is also a mixed system where public and privately-operated facilities coexist. About

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges. . .

83

an 8% of the prison population are women. When cost is taken into account, the prison system in Chile expends about 690 million dollars a year (Dipres 2020), but this estimate only considers the amount of money that goes directly to Gendarmería (operational costs, salaries, food, and so on). In 2010, a prison fire killed more than 80 inmates at the San Miguel prison, triggering somehow a public awareness about prison conditions, creating a momentum for prison reform. After such tragedy, some changes took place: flammable elements were prohibited; networks of pipes were built; prison personnel and inmates were trained to become prison firefighters; extinguishers were acquired; among others. Despite the fact that many consider that the prison system in Chile does not respect the human rights of the incarcerated even after San Miguel, in this book chapter I sustain that some progress has been made based on genuine attempts to improve the situation of human rights in prisons but, at the same time, additional measures are needed to update the institution in terms of its human rights standards, trying to offer a balanced, yet not neutral perspective.

2 Human Rights in Chilean Prisons: Advances 2.1

The 2010 Tragedy as a Trigger for Prison Reforms

Prison issues in Chile tend to receive public attention only in the presence of mediaportrayed, extraordinary events such as escapes or tragedies (Arévalo 2013). In 2010 a tragedy struck the prison system in Chile. A prison fire killed 81 inmates in the San Miguel prison, in Santiago, as a result of a fight between rival prison gangs and lack of preparedness of the prison system to deal with events like such. In addition to the deaths, about 20 others resulted injured. After this tragedy, the prison service designed protocols, implemented fire-fighting networks on each prison; anti-fire equipment (helmets, special suits and first-aid kits); and the training of both guards and inmates as fire-fighting volunteers. Besides, and perhaps more importantly in the long run, this tragic event woke up concerns about prison conditions and a renewed debate on inmates’ rehabilitation emerged. Among the main human rights improvements that the prison service has been implementing, I highlight the following: organizational, internal changes; more openness to empirical research in prisons; initiatives against solitary confinement and torture; infrastructure improvements to reduce overcrowding; some progress regarding the situation of women; and an increased awareness about adult visitors and children.

84

2.2

G. E. Sanhueza

Organizational Advances in Promoting Human Rights

The creation of a Unit for the Protection and Promotion of Human Rights inside the prison system itself in 2013 was one of the most important organizational changes that took place after the 2010 prison fire. This Unit was created as a response to organizational increased self-awareness about how human rights were systematically violated inside prison facilities nationwide. Its central mission had primarily to do with (re)educating prison guards, officers and staff about human rights of the incarcerated; training prison personnel on how to do their job without affecting basic rights; informing prison personnel about the consequences of not abiding by human rights principles; and, ultimately, promoting a culture of respect inside the organization (Gendarmería de Chile 2013). Aligned with its educative component, this Human Rights Unit also trained a portion of prison guards and officers as “human rights monitors” in each prison facility, nationwide. The idea was to help disseminating good practices and educating fellow co-workers on human rights in prisons but from a more realistic, firsthand perspective, from a colleague rather than an external, non-prison expert (Gendarmería de Chile 2013). A third accomplishment this Unit achieved was the development of a Manual on Human Rights of the Incarcerated, which was first published in 2013. Written in a friendly, easy-to-read, concise approach, this Manual included topics on what human rights are in places like prisons; the role of prison guards and staff as state agents; the limits of legitimate punishment; the appropriate treatment of minority and special populations, such as incarcerated women, indigenous inmates, the elderly, LGBT prisoners, juvenile offenders and other groups (Gendarmería 2013b).

2.3

Institutional (Greater) Openness to External Observers and Self-Observation

Alongside the creation of the Human Rights Unit, the prison service has matured in terms of the importance of self-observation in order to achieve better outcomes with incarcerated populations. Yet this process was not exempt from tensions and problems, especially at its beginnings, the prison service now periodically receives representatives from the National Institute of Human Rights when conducting some investigation on human rights violations inside a facility (INDH 2015, 2016). One example of this increased self-awareness was the launch of the first national study on inmates’ quality of life, which took place in 2013, conducted in collaboration with the University of Michigan School of Social Work and the Unit of Human Rights of the Prison Service. This work implied the design and implementation of the first, nationwide assessment on human rights in 75 facilities throughout the country (Espinoza et al. 2014) being also partially funded by the prison system itself. This exercise surveyed more than 2000 inmates in a variety of domains

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges. . .

85

including prison conditions, mistreatment by guards, program access, violence among fellow inmates, in-prison visitation, and many other domains (Sanhueza 2015). After that national study, other empirical pieces have investigated a variety of issues of prison life, such as the ‘moral performance’ of prison facilities (Sanhueza and Pérez 2019; Liebling et al. 2011; Liebling 2004); the magnitude of institutional mistreatment (Sanhueza et al. 2020; INDH 2016; Arriagada and Rochow 2015); prison violence among inmates (Sanhueza et al. 2020; Bergman 2020); the influence of institutional factors on recidivism (Sanhueza et al. in press; Sanhueza and Pérez 2017); daily-life issues on prison life, including corruption (Sanhueza and Brander 2021). An interesting conclusion from these projects is that some prisons have better environments than others (some are more “survivable”). Inmates described— through the MQPL survey reports and qualitative interviews—that the prison environments differed greatly and that their own and particular dynamics were constituted, so that the prison experiences in the different centers were not homologous. Likewise, prison authorities valued the MQPL questionnaire, the metrics and the responses collected in different centers made sense and confirmed the experiences of those who worked there, including those reports about sensitive or difficult to report situations, such as drug trafficking by staff, corruption or lack of clear rules and procedures.

2.4

Initiatives Against Solitary Confinement and Torture

Nationwide, the use of solitary confinement as a disciplinary measure was stopped by an executive order from the Ministry of Justice itself in 2013, given the fact that due to lack of infrastructure, solitary confinement in Chile really meant staying in a tiny, three-by-three, square-meter cell. Thus, what the prison system really had by then was a bit more than putrid, dark, medieval-style dungeons. This measure was initially taken with resistance and doubts, especially by prison guards, who argued that with no solitary confinement they would end up impeded from imposing order in front of conflictive inmates. In terms of its magnitude, and previous to the end of this practice, research findings had showed that a bit more than one-third of inmates (36.6%) responded that had been in solitary confinement (in the facility where survey was conducted), which in Chilean prisons, meant a 10-day stay in a small, nasty, humid, 3x3-meter cell. Besides, the term “solitary” almost never applied to any of these cells, where it was possible to find up to four individuals living in such precarious conditions. The same report highlighted that, when referring to security scrutiny in their cells, about half of respondents (51.1%) reported having been stolen (or having been damaged) some personal belonging property during these security routines. They also manifested that prison personnel use to confiscate non-prohibited items and/or to break up inmates” personal belongings “just for fun” (Espinoza et al. 2014).

86

G. E. Sanhueza

Although it is not entirely clear that today the practice of solitary confinement has completely ended in the entire country, its use has undoubtedly decreased since the changes introduced in 2013. Recently, the National Preventive Mechanism Against Torture was implemented in Chile, bringing more institutional and political interest in the human rights of the incarcerated. Its focus in these initial months has mostly been in conducting unannounced visits to prison facilities, starting particularly with those that–historically—have had more problems or denounces.

2.5

Infrastructure Improvements

With the gradual implementation of privately-operated prisons (public-private cooperation) since 2006, the country was able to reduce overcrowding, improving basic living conditions for inmates. Indeed, when compared to their fellow inmates that were in public counterparts, inmates living in privately-operated facilities reported better prison conditions for virtually any of the indicators of prison infrastructure, in a national study (Espinoza et al. 2014; Sanhueza 2015). Currently, private prisons house near 14,000 individuals, most of whom are higher-profile cases in terms of its criminal involvement, gang affiliation and level of dangerousness, all of which is probably due to the higher security standards (to prevent escapes) that privately-administered prisons have in comparison to their older, public counterparts. In the beginning, the Chilean government had promised that private prisons would increase efficiency and security of prison facilities, improving also the regime, the compliance with human rights standards and the chances for rehabilitative activities (BID and Fundacion Paz Ciudadana 2013; Urrutia-Moldes 2019). The business model gave to private companies the responsibility of the design, construction, provision of equipment, and operation of the prisons included in the contract. On the other hand, the administration of the contract was commissioned to the Chilean Ministry of Infrastructure (considering that they had experience in the privatization of roads, airports and the alike that also took place in Chile by the time). The prison service remained responsible for the security and daily operation of the facilities while the private partners had to care about catering, maintenance, and rehabilitative programs (Urrutia-Moldes 2019).

2.6

Some Advances for the Incarcerated Women

Mothers with their children have permission to stay with them until children turn 2 years old. This group has received more relative attention inside prison facilities, including the construction/ adaptation of special infrastructure prison conditions, a differential internal regime, the possibility to send their babies to daycare inside the same prison facility (with specialized personnel that take care of the children during

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges. . .

87

the day). In addition, there have been more (and better paid) job opportunities for incarcerated women, especially in larger, public prisons such as the Female Penitentiary Center in Santiago, for example. In order to provide specific examples of certain progress regarding the humane treatment of incarcerated women, in this sect. I have included some first-hand, qualitative notes on a prison visit that Drs. Alison Liebling and Bethany Schmidt did along with myself into the largest female prison facility in Chile, located in Santiago. This facility is a women’s prison housing 460 women from many nationalities, yet mostly Chilean nationals. The prison was a former missionary, nouns’ camp and, as such, it did not have what one may imagine as a proper prison infrastructure. In one of our research visits, conducted in 2016, a group of researchers (Drs. Sanhueza, Schmidt and Liebling) were taken round by the Deputy Director—a young, warm, passionate, and well liked leader, who had joined the prison service after volunteering in a prison in her youth: ‘There were people like me in prison’, ‘what we are doing is punishing poverty’. She was gently authoritative, but kind, and overtly ‘socially embedded’. She had worked at the prison for 10 of her 17 years in the service, and loved it, although she also found it emotionally challenging. She was clearly well known around the prison, and was greeted warmly by staff and prisoners alike. In our visit, we observed that the conditions were not lavish, and the women lived in large dormitories. The numbers occupying each dormitory had been drastically reduced since the major fires in San Miguel, so we did not see overcrowding here. There was color almost everywhere—painted walls, colorful blankets and clothes, and many possessions. There was more overt humanity and expressed affection in this prison, and it had a better and calmer atmosphere, than most of UK prisons for women. The open outside spaces, sunshine, and trees and flowers in bloom around the grounds may have helped, and we did not see the segregation unit. We visited a smaller dormitory for women undergoing drug treatment, and talked with a group of them about their experience. They appreciated the opportunities they had here, but still the familiar sadness and vulnerabilities were obvious. There was no hesitation in speaking with us, or the kind of watchfulness often found in women’s prisons in England and Wales indicating caution, suspicion or distrust. We saw no aggression (we did see embraces) and felt very little tension in the prison. We called in to the education department, where a small group spontaneously performed two songs for us, led by their music teacher. They had just returned from a long flight/trip to south Chile where they had performed for the Ministry of Justice’s annual public account. The lead singer had a beautiful voice, and a presence. The group sang love songs, with energy and emotion, and laughed, inviting each of us to sing (none of us dared). We also visited the mother-and-baby unit, which housed 20 pregnant and young mothers, and were struck by the care our guide took as she tip toed round the cots, trying not to disturb three sleeping babies. A breast-feeding mother showed us her 2-week-old baby. There were nursing staff around. The babies could stay for up to 1 year. We also saw a variety of cooking facilities—the women who worked in these areas supplied cakes, savoury and other food to outside

88

G. E. Sanhueza

agencies. The entire prison was ‘feminized’ but in a way that communicated care, and the meeting of needs. Its orienting theme was dialogue. ‘We are applying a gendered perspective’, the Deputy Director explained, ‘we try to respond to their needs’. A funeral had recently taken place inside the prison. ‘That way, we can address humanity, allowing people to mourn together, and avoid security problems’. Family matters in Chile. ‘We are totally working with the concept of moral performance in this prison’. ‘We are trying to provide opportunities’. ‘We do aim for some control at first, then self-control. They repay the trust we place in them’. A female researcher from the US had recently (about 2 years ago) carried out an extended interviewbased research project in the prison. ‘She was wonderful. She built trust and confidence with the women. She spent time on the dorms and in the units, becoming one of them. She was almost doing psychological or clinical work. The women got healthier, and she got her study’. The local vision of research was as something to be welcomed, of benefit to all. We ate food prepared by inmates over a late lunch, with the Deputy Director and a handful of other staff.

3 Human Rights in Chilean Prisons: Setbacks While it is undeniable that Chilean prisons and the entire system itself look much different (and improved) now than it was once the dictatorship ended in 1990, there are areas of human rights where much additional work needs to be done yet. In this section, I analyze some of the most important components: the absence of a specific law regulating incarceration; the persistence of infrastructure problems in many prisons in the country; the threat of corruption; institutional mistreatment; inmateon-inmate victimization; the treating of visitors; the insufficient efforts in rehabilitation and inmates’ health; the low performance of privately-operated facilities; and the still-insufficient situation of women.

3.1

The Absence of a Specific Law Regulating Prison Life and the Incarcerated

The Chilean penal system is characterized by the fact that in the execution of the penal sanction, different regimes or forms can be found through which to fulfill said sanction. About half of the persons who serve a sentence may do so through a substitute sentence according to the requirements set forth in Law No. 20,603. There is a division between closed, semi-closed and open systems, where those in the closed system (the 45,000 individuals mentioned above) are those who are most at risk from the pandemic and to whom the health measures of prevention and protection are mainly directed (Gendarmería de Chile 2023).

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges. . .

89

Künsemüller (2005) had already criticized the gap in the Chilean legal system, especifically in the phase of penal execution, in light of State’s penal authority and because of the (potential, by then) “violation of the rights of the convicted upon carrying out their sentences” (p. 1), presenting also the main characteristics that an specialized entity should have in order to fulfill this role. In a more recent work, Horwitz (2018) studied the general evolution of the deprivation of liberty in Chile. In her analysis, she says that “ideological devices have historically ensured the exclusion of those sentenced to imprisonment of their consideration as rights holders, whose exercise should not be affected but only with respect to the rights or duties committed with the nature of the sentence (s) imposed” (p. 1). Very accurately, she also criticized the “administrative-centered” emphasis of the incarceration stage, which has ended in an “understanding (of) that criminal law—with all of its principles and guarantees—only reaches the moment of judicial imposition of sentence; jail is out, and so is the rule of law” (p. 1). Yet the reasons for this lack of a specific law still remain not totally clear, some hypotheses could be linked to penal populism (Morales 2012); lack of developments on penal executions in the region, with its subsequent scarce training within Chilean law schools (Castro 2019); or, alternatively, with the lack of social and political priority that inmates and, more broadly, the undesirable or the poor have received in countries with neoliberal policies like Chile.

3.2

The Persistence of Infrastructure Problems

As Jewkes (2018) shas suggested, architecture and infrastructure are important tools to foster positive outcomes in treatment of people in custody, as avoiding physical and psychological stressors in prison design are crucial to promote the right mental and emotional state of inmates in order to make the most of rehabilitative efforts (Urrutia-Moldes 2019). Despite the launch of private-public initiatives regarding prison privatization in 2006—con the consequent reduction in overcrowding—many Chilean prisons still suffer from overcrowding and lack of decent infrastructure, not only considering cell blocks but also space for programming or rehabilitative activities. Today, official overcrowding rates are, on average, about 20% (Gendarmería 2023). The indicator used to measure overcrowding is through “occupation rate”, which has to do with the number of inmates suggested for living in a certain, available space. Using official figures, in some regions of the country prisons reach up to 300% of occupation rate. Nevertheless, this indicator was operationally modified around 2010 by the administration and, as a result, overcrowding was reduced nationwide (ending up in the current 20%). Most likely, it does underestimate the overcrowding problem. According to a national study on prison conditions (Sanhueza 2015) where inmates were surveyed and a had a chance to evaluate their life conditions, overcrowding, inadequate temperature of the cells, deteriorated bathroom conditions

90

G. E. Sanhueza

Table 1 First National Survey on Inmates’ Perception of Quality of Prison Life, descriptive Statistics by domain Domain/variable Demographics Women Men Prison conditions Do you receive enough food? Do you get your food warm enough? Do you have enough space in your cell? Do you have access to a shower on daily basis? Do you have a bathroom in good condition? Is it generally clean your cell space? Is it appropriate the temperature in your cell? Do you have appropriate ventilation? Do you get natural light in your cell? Security and interpersonal relations Have you suffered physical mistreat by other inmates? Have you suffered physical mistreat by any uniformed? Have you suffered psychological mistreat by other inmates? Have you suffered psychological mistreat by any uniformed? Have you suffered any sexual abuse by other inmates? Have you suffered any sexual abuse by any uniformed? Program access Have you participated in any job skills program here? Have you worked for paid here? Have you attended in-prison school here? Have you participated in any intervention program here? Have you participated in any sport activity in this facility? Have you participated in any artistic/cultural program here?

% Yes (or good) 33.6 67.4 73.5 66.6 42.1 89.7 48.7 60.4 33.2 50.9 72.5 21.2 38.4 33.8 44.2 1.8 1.1 29.4 30.7 32.6 23.1 44.6 20.0

Source: Adapted from Sanhueza et al. (2015) with proper permissions

and lack of ventilation would have been the most–reported infrastructure problems nationwide by the beginning of the 2014. (Further details on Table 1, at the end of this section).

3.3

Institutional Violence and Inmate-on-Inmate Victimization

In terms of institutional violence, there are accounts that have investigated the magnitude and manifestations of institutional violence towards inmates. For example, the National Institute of Human Rights (INDH) has found that many conducts

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges. . .

91

by prison guards would be common practice in Chilean prisons (INDH 2015). In the same vein, Espinoza et al. (2014) in the first (and only, so far) national study conducted on prison life in Chile. Survey results revealed that an important proportion of respondents declared having suffered physical maltreat by other inmates (21.2%) and by uniformed personnel (38.4). In addition, the reality of psychological maltreat is even more present, with a 33.8% of respondents declaring that had suffered it from other inmates and a 44.2% from guards or officers (uniformed personnel). According to survey results, sexual abuse from fellow inmates and guards did not appear to be a high-prevalent problem, yet results should be interpreted with caution due to possible bias to under-reporting, according to prison culture. Table 1 shows a summary of main findings regarding inmates’ points of view regarding infrastructure conditions, interactions with prison guards, mistreatment situations and so on. Despite the fact that figures may be seen as a bit outdated (information comes from a 2013 national study), the tendencies shown in the table have not changed much for the better since then and these figures may constitute a good proxy for prison conditions and environments, from inmates themselves, nationwide. Sanhueza et al. (2022) observed and analyzed the phenomenon of violence between inmates inside the Santiago Penitentiary, one of the largest prisons in Latin America. The methodology used was predominantly qualitative and consisted of a series of conversational interviews with direct treatment officials in the workplace, added to a year of non-participant observations and field notes. The overall findings show that violence is a phenomenon that marks social life within the prison. From guards’ point of view, inmate-on-inmate violence is observed as an everyday phenomenon, linked to social contexts of disadvantage and social marginalization since childhood; and that it would obey various motivations: previous conflicts in the neighborhoods; vicarious violence against a member of another clan; or due to disputes generated within the prison itself, or a combination of them. Although at times the accounts of guards tend to naturalize violence and omit the role / responsibility of the prison administration in violence, the degree of first-hand observation they have regarding the prison population suggests that there is a potential for directtreatment prison officers who, with adequate re-training, could be better used in initiatives to reduce prison violence, adding them as a relevant actor (Sanhueza et al. 2022). At the same time, guards’ narratives emphasized that violence appeared to them as a routinized, naturalized phenomenon, combined with the absence of selfcriticism (either towards individuals or the institution) regarding the role of prison management in the violence: the violent ones are inmates; no mentions were made about institutional violence. Prison officers and guards also tend associate violence between inmates as related to drug trafficking and / or consumption inside the facility. Here, too, the same attribution of responsibility appears as in violence: both drug use and trafficking inside the prison have to do only with inmates; there were no mentions of officers or the administration.

92

G. E. Sanhueza

More recent estimates have identified an increment of inmate-on-inmate prison, suggesting that the phenomenon is expanding in frequency and complexity (Sanhueza et al. 2020) and that inmates in Chilean facilities are at a greater risk of suffering victimization than in the previous decade (Sanhueza et al. 2020; Sanhueza 2014).

3.4

Treatment of Visitors Pre and During Covid

According to different international, legal instruments, visitation constitutes an important human right of the incarcerated as visitation brings social support to inmates, helping them to deal with the pains of imprisonment (Sykes 2007). In addition, in Latin American prisons, families and other visitors are culturallyembedded figures, much influential in prison life, for both inmates and prison administrations. Moreover, visitation would decrease chances of misconduct (Hutton 2017) and, possibly, help inmates during the process of desistance of crime as well as the reduction and delay of recidivism (Bales and Mears 2008). As some previous research has suggested, visitation usually is a source of legitimacy for a precarious prison system, especially in Latin American countries (Sanhueza and Bustos 2015). Historically, most of prison disturbances have had to do, at some point, with mistreatment of relatives (women and children, particularly) by the prison administration. In a national study back to 2013, about 50% inmates had declared being visited every or almost every week, which constitutes an important pressure for the prison administration in terms of enrolling, managing and organizing an important amount of individuals, performing a variety of tasks: assuring the security of the elements that visitors may bring into the facility; carefully searching for drugs, alcohol, weapons or any illegal item; and providing a decent and professional treatment for all visitors, among others. Nevertheless, the same study also revealed that about a 20% of inmates nationwide declared having received no visitors during last month, which may greatly affect mental health and stability of this portion of inmates (all of these findings are pre-covid estimates, though). While the reasons of the non-visitation are not entirely clear, part of the explanation may lie in differences between where the crime was committed versus inmates actually live; some inmates could have been transferred to a prison in a different region as a form of “cover-up punishment”; or because disadvantaged families cannot easily afford the costs associated to visitation (lack of time and/or transportation, for example). That study also showed that in pre-Covid context, inmates in public prisons were visited more often than those in privately-operated facilities; and that about a 25% of visitors would have been treated poorly by the administration (particularly female inmates and those housed in privately-operated facilities). Survey results also showed that only one-fourth of respondents (25.5%) reported that their visitors and relatives were treated fairly during security procedures before entering the facilities; inmates said that procedures were too intrusive and disrespectful of their

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges. . .

93

visitors, especially considering that they were not incarcerated (Espinoza et al. 2014, p. 21). During the Covid-19 pandemic, physical visitation was restricted in the entire country. Instead, cell phones were allowed—under certain conditions—and, in some cases, video calls too. The use of cell phones inside prisons was allowed to facilitate virtual visits, yet a procedure was established for their use: it ranged from the request for the device, the regulation of the hours (on average two), the days when it could be used (from 2 to 3 days) and the prohibitions of its use in cells. Other reasons for using cell phones could apply but needed to be requested and justified to the prison administration personnel in advance (Castro et al. 2022). The regulations that emerged under the pandemic were aimed at improving hygiene, to prevent contact between both inmates and visitors and, ultimately, to prevent the spread of the virus. In combination to these restrictions, a certain flexibility also developed in the regime. In the judicial sphere, practices that avoid imprisonment were also implemented, reducing the use of pre-trial detention and granting more benefits such as parole. The National Institute of Human Rights [INDH], through the Report issued on 6 April (INDH 2020) and the opinions expressed by its director, highlighted that the prison context was critical even before the pandemic, so that the virus just worsened the previous situation of inmates. This same report added that it was the duty of the State to guarantee minimum rights to prisoners because of their particularly vulnerable condition and suggested that in-person visitation should be put back as soon as the crisis could be stabilized, in order to give inmates social support and hope, after almost a year with no visitors.

3.5

Lack of Consistent, Integrated Efforts on Rehabilitation and Inmates’ Health

According to estimates from the national survey on prison life (Sanhueza 2015), in terms of access to rehabilitative programs, most inmates in the survey declared to have taken in-prison sports programs (44.6%), and in in-prison school (32.6%). Participation in intervention programs (psychological or social) were reported only by a 23.1% of respondents and access to job-skills program was found only in a 29.4%. These numbers are problematic as they suggest that not all inmates have access to real “second chances”. But, in addition to lack of access to rehabilitative programs, there are problems in terms of consistency of programs that have been applied to/with inmates. While some correlates of such deficit has to do with lack of infrastructure, part of it may have to do with insufficient training of prison staff (Brander and Sanhueza 2016); the lack of internal consistency during interventions; or even the running of programs with mixed-up populations, influenced by coverage pressures / incentive

94

G. E. Sanhueza

mechanisms especially presents in the privately-operated prison sector (Sanhueza and Pérez 2017). When health and mental health is considered, according to some of the scarce estimates that the literature in Chilean prisons has to offer, León-Mayer et al. (2014) found that about two-thirds of Chilean inmates would have antisocial personality disorder and a 13% would have psychopathy. In terms of predictors, the history of previous violence, substance abuse as well as impulsivity stood out. Other scholars have also highlighted the importance that mental health treatment can be available for inmates once they return to society (Begun et al. 2016). When access to healthcare is taken into account, it is striking that the proportion of inmates reporting having access to healthcare was only one-fifth. Moreover, only a 20% of responses evaluated the quality of attention as “good” (Sanhueza and Candia 2019).

3.6

Incarcerated Women: A Still-Invisible Reality

Despite the prison system in Chile adopted at the beginning of the 2010s a “gender perspective”, the implementation of such agenda is still a pending task (Pérez 2020). As a recent doctoral paper has highlighted, prisons in Chile have not incorporated— much beyond good-intended declarations—a gender perspective into their daily practices (Pérez 2020). In addition, there are many gaps when women’s reentry is thought and implemented today in Chile, including concerns about their children, mental health services and job opportunities that can be conciliated with their family context and demands (Larroulet et al. 2020; Sanhueza et al. 2019). Despite that vocational training and job opportunities have undoubtedly increased for women in recent years, some important aspects of “being a woman behind bars” remain not entirely implemented by prison administration. For example, according to both comparative evidence (Antony 2007) and local research in Chile (Sanhueza et al. 2019), incarcerated women have experienced higher rates of sexual abuse, domestic violence and mistreatment by family members than the general population, all of which has impacted women’s lives and remain much untouched by the prison system in the form of social and/or psychological services available to them. Based on estimates from the national survey on prison life, although men and women reported having suffered both physical and psychological mistreat by other inmates and by prison guards, there were variations. Whereas for men the top-two issues had to do with having suffered mistreat by guards, either in the form of psychological (47%) or physical (44.7%), women mostly reported having suffered psychological mistreat from other inmates (38.5%) and from prison guards (38.7%) (Espinoza et al. 2014, p. 20). When asked about what aspects inmates would change if they could, priorities’ distributions were different for men and women. Not surprisingly, both groups long for freedom and wish to have “more opportunities for early release” but women’s priorities were more evenly distributed with four categories disputing the second place: better in-prison health services, more access to public telephones, better

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges. . .

95

treatment to visitors and better treatment to inmates. Men, on the other hand, emphasized more clearly their priorities: better treatment for visitor, better treatment for inmates and the need for more working opportunities. Finally, there are other situations that seem to be disproportionately affecting incarcerated women, related to personal trajectories marked by abuse, violence and cumulated trauma. Indeed, from the National Survey conducted in 2013 it was possible to estimate that about a 25.9% of incarcerated women declared having suffered sexual abuse during childhood or adolescence; 44.7% suffered family violence; and almost 9 in 10 (88.7%) had children in the outside. The consequences of physical, psychological and sexual violence in women have been reported (i.e. Tolman and Rosen 2001; Weisz et al. 2000) and its over-representation in prison should lead to intervention initiatives that may repair part of the cumulative damage they had suffered. Much of these situations are not being addressed in current prison practice. Job opportunities and vocational training are, of course, important, but long-term issues like trauma, mental health or intimate violence and/or childcare in the outside remain as some examples of pending, social tasks that would collaborate in women’s reentry.

3.7

A Private System that Promised Much but Is Still in Debt

The public-private system promised a lot in its beginnings, but currently exhibits lower indicators than the public ones in terms of prison climate, greater recidivism, more violence within its precincts, scarce access to reintegration programs and lower rates of individuals pre-released (Sanhueza and Pérez 2017, 2019; Fundación Paz Ciudadana 2013). The contract established by mid 2000s said that new buildings will be transferred back to the Chilean State once the concession ends. The State, in turn, is obliged to make semi-annual payments for a fixed subsidy for construction and operating costs, and a variable subsidy for the number of inmates housed. The contract also includes a surcharge payment for overcrowding in the event that the prison population exceeded the 120% of capacity in order to prevent overcrowding in private prisons (Urrutia-Moldes 2019). While the reasons of such perceived low performance of privately-operated prisons are not entirely cleared one possibility could be that private prisons tend to house higher, disproportionate concentrations of more conflictive prisoners in comparison to public facilities. At the same time, private prisons offer a tougher environment, in which inmates are more isolated from each other, combined with a supervision scheme heavily based on remote surveillance with scarce, direct contact between guards and inmates); others, have added that there may be insufficient expertise of governmental entities in administering private-prison contracts (Urrutia-Moldes 2019 Arriagada 2013; Dammert and Díaz 2005). However, one fundamental problem of this type of prison system may have to do with a wrong incentive scheme: when private prisons were created the incentives did

96

G. E. Sanhueza

not consider a pay-per-results mechanism. As a result, the Chilean State transfers money to private companies only based on the number of inmates housed or, alternatively, based simply on program coverages, all of which not necessarily have to do or impact the quality of services delivered to inmates (Sanhueza and Pérez 2017). As the date for re-negotiating contract is approaching, Chile should have a discussion on whether the country needs a private sector involved in prison administration. If so, it will become critical that proper, results-linked incentive schemes can be put in place, rather than mere pay per coverages.

3.8

The Threat of Corruption

The daily insecurity that affects several areas of Latin America, combined with high levels of exclusion suffered by a large part of the general population, has become a breeding ground for corruption, where non-state criminal actors try to corrupt public officials related to the public security, including prison officers (Buscaglia and Van Dijk 2005). A key aspect for the prison to fulfill its social function of contributing to public security and social reintegration is the environment and living conditions for inmates and officials. In a study conducted between 2016–2018, a research team was able to offer an initial, updated account of the problem by conducting a survey on five prison facilities, based on Liebling’s moral performance approach. They found that corruption was a common topic in both survey results and informal conversations in different prisons, yet with important degrees of variation among establishments (Sanhueza and Brander 2021; Sanhueza and Pérez 2019). In other words, corruption exists and its impact in prison life can be very serious for human rights of the incarcerated. Later, researchers that took the same study as a baseline, and followed respondent inmates after their release revealed, found important correlations between the perception of prison malfunctioning and future recidivism (Sanhueza et al. in press).

4 Human Rights in Chilean Prisons: Challenges and Concluding Remarks Prisons in Chile have improved a great deal when compared to the end-of-thedictatorship period, at the beginning of the 90s. At the same time, and unlike some other prison systems in the region, escapes are minimal and the control of the prison facilities still lies in state’s hands. Nevertheless, some challenges are still pending in terms of human rights of the incarcerated. For example, in terms of overcrowding, it is important that definitions and operational criteria can be (1) aligned and (2) be consistent with human rights

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges. . .

97

standards. As we saw earlier, criteria for defining overcrowding were modified but not justified in terms of human rights standards and, thus, were at some extent, arbitrary. In the future, changes in these criteria should be based and informed by human rights standards and architectural considerations and not to merely respond to administrative (or political) measures. In addition, as sharply Arriagada and Rochow (2015) have pointed out, much work still has to be done to guarantee the respect of basic rights of the incarcerated. Going to a prison in Chile unfortunately still represents a high predictor of abuses, arbitrary decisions and deprivations that go beyond the mere restriction of movement. Nevertheless, the increment of inmate-inmate violence (Sanhueza et al. 2020), combined with small but increasing extortions by more powerful inmates, as well as the strengthening of transnational gangs inside prison walls have become additional sources of abuses and oppression (Alveal 2020). In the same vein, one pending challenge has to do with solidifying a national, systematic structure of prison inspections. Currently, most inspections are carried out occasionally by members of the Judicial Prosecutor of the Chilean Supreme Court, with an unstandardized methodology. As a result, inspections have tended to excessively focus on infrastructure conditions, rather than other relevant aspects of prison life, such as program access, interpersonal relationships between incarcerated individuals and guards/officers, inmate-on-inmate violence, among others (Castro et al. 2020). The privatization of prisons constituted a volume of public investment never seen in the prison system before. It also represented a promise of updating the prison infrastructure of the country (Urrutia-Moldes 2019), accompanied by the of better, more effective rehabilitation. Nevertheless, the private sector in prisons seems to be in debt as program access, lack of coordination, inside violence and recidivism are not part of the original promise (Sanhueza and Pérez 2017; Fundación Paz Ciudadana 2013). A topic that must be more directly addressed is violence inside prison walls in any of its forms (institutional violence; inmate-inmate; inmate-staff) as, in recent years, prison violence has increased in both quantitative terms and qualitative complexity. Its occurrence threats safety and human rights of the incarcerated and undermines any serious effort for reintegration of inmates into the society. The threat of corruption is a serious, real threat that the prison system is experiencing in Chile, related to the increasing influence and impact of illegal drug trade and organized crime linked to it. These increments, combined with the amount of money these organizations may be managing are adding pressure for corrupting prison officers, guards and staff members. In the positive side of this it is that corruption has been recognized by prison authorities, officers and guards; and has not been naturalized (yet). Part of this threat can be addressed by improving the training of prison personnel in human rights, a measure that the prison service in Chile is undertaking seriously in recent years, with the expansion of training from 2 to 4 years for prison officers. One concrete, pending challenges to improve the visitation experience is to incorporate more (and more sophisticated) technology in order to conduct

98

G. E. Sanhueza

non-invasive, corporal searches with visitors. Technology can also help to enhance prisons’ security as well as to optimize resources inside facilities, especially in terms of liberating prison guards from tasks where prison personnel can be assisted by machines. In terms of treatment and intervention initiatives inmates receive, there is space for improvement, too. Indeed, the need for more effective interventions, greater program access, and more consistency and coordination of current initiatives are critical pieces for generating processes of desistance with incarcerated individuals. Some studies have warned that program coverages are by far insufficient to attend Chilean inmates but also, more recent pieces, are alerting about issues of low quality, low fidelity, implementation failures and scarce effectiveness of in-prison programs. In this regard, it is important to transform the internal, organizational culture of the prison system towards a more legitimate-focused, rehabilitative-centered institution (Sanhueza and Pérez 2019; Zúñiga 2010). One pending challenge thinking of incarcerated women has to do with implementing a system that facilitates women’s desistance process, not only improving rehabilitative initiatives inside prison walls but also accompanying the process once they leave the facility. In this process more actors need to be included such as municipalities, the private sector, and mental health services, just to name a few (Larroulet et al. 2020; Pérez 2020; Sanhueza et al. 2019; Barrick et al. 2014). The need of a specific law on penal execution is an imperative for a country that aspires to social development (Castro 2019; Arriagada and Rochow 2015). Now, if the country is about to embark in creating such a law, it is important to secure a proper implementation process, including the provision of appropriate resources, institutional support and political consensus. Otherwise, there is a risk that the new law becomes dead letter, especially for a country with an embedded tradition of legalism like Chile. Finally, prison personnel are key to the order and legitimacy of the prison system (and the state, finally). But, to fulfill that role effectively, staff must learn to view violence as something unnatural, which depends in part on their efforts; and they need to internalize that these efforts contribute to creating environments that are more conducive to reintegration processes.

References Alveal C (2020) ¿Reinserción o inserción? Seminario virtual Personas privadas de libertad. Youtube. Publicado el 1 de diciembre de 2020. https://www.youtube.com/watch?v= IFaqwykAT30&t=4050s&ab_channel=CentrodePol%C3%ADticasP%C3%BAblicasUC. Accessed 24 July 2022 Antony C (2007) Mujeres invisibles: las cárceles femeninas en América Latina. Nueva Sociedad 208:73–86 Arévalo A (2013) Modelos de Gestión Penitenciaria: Una aproximación teórica desde el sistema de ejecución penal chileno. Revista Diké 3(2):1–12

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges. . .

99

Arrarás A, Bello-Pardo ED, Bonilla A, Chávez N, Cutrona SA, Dammert L, Pamelá P (2015) Prisons in the Americas in the twenty-first century: a human dumping ground. Lexington Books Arriagada I (2013) Cárceles privadas: la superación del debate costo-beneficio. Política Crim 8(15): 210–248 Arriagada I, Rochow D (2015) Privación de la libertad en Chile: desgobierno carcelario y afectación de derechos de la población penal. In: Informe anual sobre derechos humanos en Chile 2015. Ediciones Universidad Diego Portales, Santiago, pp 161–207 Auty KM, Liebling A (2020) Exploring the relationship between prison social climate and reoffending. Justice Q 37(2):358–381 Bales WD, Mears DP (2008) Inmate social ties and the transition to society: does visitation reduce recidivism? J Res Crime Delinq 45(3):287–321 Banco Interamericano de Desarrollo, & Fundación Paz Ciudadana (2013) Evaluación del sistema concesionado versus el sistema tradicional en la reducción de la reincidencia delictual Barrick K, Lattimore PK, Visher CA (2014) Reentering women: the impact of social ties on longterm recidivism. Prison J 94(3):279–304 Begun AL, Early TJ, Hodge A (2016) Mental health and substance abuse service engagement by men and women during community reentry following incarceration. Adm Policy Ment Health Ment Health Serv Res 43(2):207–218 Bergman M (2020) Insights from new studies on violence in Latin American prisons. International Criminal Justice Review 30(1):5–7 Brander F, Sanhueza G (2016) Facilitadores y obstaculizadores para la reinserción social: analizando la perspectiva de profesionales penitenciarios. TS Cuadernos de Trabajo Social 15: 109–135 Buscaglia E, Van Dijk J (2005) Controlling organized crimes and corruption in the public sector. UC Berkeley, Latin American and Caribbean Law and Economics Association Castro A (2019) Ejecución de la pena de prisión de adultos en Alemania: análisis de las leyes estaduales a la luz de la Ley Federal de 1976 y la jurisprudencia del Tribunal Constitucional Federal Alemán (BVerfG). Derecho PUCP 82:281–313 Castro A, Sanhueza G, Purán V, Cortés J (2020) Fiscalía Judicial: Posibilidades y Limitaciones en su rol de inspector de prisiones. Política Crim 15(30):871–906 Castro A, Sanhueza G, Cortés J, Purán V (2022) The impact of coronavirus in the Chilean prison system. In: Dünkel F, Harrendorf S, van Zyl Smit D (eds) The impact of Covid-19 on prison conditions and penal policy. Routledge. https://doi.org/10.4324/9781003169178-7 Coyle A (2003) A human rights approach to prison management. Crim Behav Ment Health 13(2): 77–80 Dammert L, Díaz J (2005) El costo de encarcelar. Observatorio 9:36–47 Dammert L, Zúñiga L (2008) La cárcel: problemas y desafíos para las Américas. FLACSO-Chile Dias C (2011) Da pulverização ao monopólio da violência: expansão e consolidação do Primeiro Comando da Capital (PCC) no sistema carcerário paulista. Faculdade de Filosofia, Letras e Ciências Humanas, Universidade de São Paulo, tese de Doutorado [en línea], São Paulo. Disponible en: http://www.teses.usp.br/teses/disponiveis/8/8132/tde-13062012-164151/. [Consultado el 29 de julio de 2014] Dias CN, Darke S (2016) From dispersed to monopolized violence: expansion and consolidation of the Primeiro Comando da Capital’s Hegemony in São Paulo’s prisons. Crime Law Soc Chang 65:213–225 Dirección de Presupuesto de Chile [DIPRES] (2020) Informe de Ejecución Presupuestaria a Noviembre 2020 para Gendarmería de Chile Espinoza O, Martínez F, y Sanhueza, G. (2014) El Sistema Penitenciario y su impacto en las personas privadas de libertad. In: Informe sobre los Derechos Humanos en Chile 2014. Ediciones Universidad Diego Portales, Santiago, pp 245–289 Fundación Paz Ciudadana (2013) La Reincidencia en el Sistema Penitenciario Chileno. Fundación Paz Ciudadana, Santiago

100

G. E. Sanhueza

Fundación Paz Ciudadana (2016) Estudio sobre los niveles de exclusión social en personas privadas de libertad. https://pazciudadana.cl/biblioteca/documentos/estudio-sobre-exclusion-social-enpersonas-privadas-de-libertad-resultados-preliminares Gendarmería de Chile (2013) Manual de Derechos Humanos de la Función Penitenciaria. Unidad de Protección y Promoción de los Derechos Humanos. https://html.gendarmeria.gob.cl/doc/ ddhh/Archivos_Adicionales/MANUAL_DDHH_GENCHI_FINAL.pdf Gendarmería de Chile (2023) Sitio web institucional www.gendarmeria.cl sección “Estadísticas Penitenciarias” Harding R (2014) Rehabilitation and prison social climate: do ‘What Works’ rehabilitation programs work better in prisons that have a positive social climate? Aust N Z J Criminol 47(2): 163–175 Horwitz M (2018) La insostenible situación de la ejecución de las penas privativas de libertad:¿ vigencia del Estado de derecho o estado de naturaleza? Política Crim 13(26):904–951 Hutton MA (2017) Prison visits and desistance: a human rights perspective. New perspectives on desistance: theoretical and empirical developments, 187-209 Instituto Nacional de Derechos Humanos (indh) (2015) Informe Anual Situación de los Derechos Humanos en Chile 2015 Instituto Nacional de Derechos Humanos (indh) (2016) Informe Anual Situación de los Derechos Humanos en Chile 2016 Instituto Nacional de Derechos Humanos. Director Indh: “el Centro Penitenciario de Puente Alto se está transformando en un foco de infección”. Noticia del 20 de abril. 2020 Jewkes Y (2018) Just design: healthy prisons and the architecture of hope. Aust N Z J Criminol 51 (3):319–338 Künsemüller C (2005) La judicialización de la ejecución penal. en: Revista de Derecho de la Pontificia Universidad Católica de Valparaíso 26(1):113–123 Larroulet P, Droppelmann C, Del Villar P, Daza S, Figueroa A, Osorio V (2020) Who is transitioning out of prison? Characterising female offenders and their needs in Chile. Int J Crime Justice Soc Democr 9(1):112 León-Mayer E, Cortés MS, Folino J (2014) Descripción multidimensional de la población carcelaria chilena. Psicoperspectivas 13(1):68–81. https://doi.org/10.5027/psicoperspectivasVol13-Issue1-fulltext-243 Liebling A (2004) Prisons and their moral performances: a study of values, quality and prison life. Oxford University Press, Oxford Liebling A, Crewe B, Hulley S (2011) Conceptualising and measuring the quality of prison life. In: Gadd D, Karstedt S, Messner SF (eds) Sage handbook of criminological research methods. Oxford University Press, Oxford Mascareño A (2014) Diferenciación, Inclusión/Exclusión y Cohesión en la Sociedad Moderna. Revista Cis 11(17):8–25 Mertz C (2015) Crime and punishment in Chile. In: The encyclopedia of crime and punishment. John Wiley & Sons, Inc., Hoboken, pp 1–4 Morales A (2012) La política criminal contemporánea: Influencia en Chile del discurso de la ley y el orden. Política Crim 7(13):94–146 Muggah R, Tobón KA (2018) Citizen security in Latin America: facts and figures. Igarapé Institute, Rio de Janeiro Pérez P (2020) Las Mujeres Privadas de Libertad y el Enfoque de Capacidades. Tesis Doctorado en Derecho, Universidad de Valparaíso Petersilia J (2011) When prisoners come home: parole and prisoner reentry. Oxford University Press, Nueva York Sanhueza G (2014) Exploring correlates of prison violence in Chilean prisons: Examining nationwide, administrative data. PhD Dissertation, University of Michigan Sanhueza G (2015) Diseño e Implementación de la Primera Encuesta de Percepción de Calidad de Vida penitenciaria: Propuestas y Desafíos para el Sistema Penitenciario Chileno. Econ Polit 2(1):5–32

Human Rights in Chilean Prisons: Advances, Setbacks and Challenges. . .

101

Sanhueza G (2021) Reincidencia delictual en Chile: Analizando la confluencia de factores institucionales, individuales y territoriales. Documento de Trabajo Facultad de Economía y Negocios de la Universidad de Chile & Banco Inter Americano de Desarrollo Sanhueza G, Brander MF (2021) Centralidad de la relación interno-funcionario en cárceles chilenas: implicancias para la reinserción y el control de la corrupción. URVIO Revista Latinoamericana Estudios en Seguridad 29:78–95 Sanhueza G, Pérez F (2017) Cárceles concesionadas en Chile: evidencia empírica y perspectivas futuras a 10 años de su creación. Política Crim 12:1066–1084 Sanhueza G, Pérez F (2019) Explorando el ‘desempeño moral’ en cárceles chilenas y su potencial para la reinserción social. Rev Mex Cienc Polít Soc 236:83–110 Sanhueza G, Ortúzar C, Valenzuela E (2015) El desempeño moral de las cárceles chilenas: un estudio piloto en Colina II. In: Propuestas para Chile 2015. Centro de Políticas Públicas P., Universidad Católica de Chile Sanhueza G, Bustos J (2015) La ‘legitimidad’ en las cárceles chilenas y sus variaciones empíricas: un análisis desde la perspectiva de los reclusos. Nova Criminis 10:207–237 Sanhueza G, Brander F, y Reiser, L. (2019) Encarcelamiento femenino en Chile: percepción de calidad de vida y necesidades de intervención. Revista de Ciencias Sociales Universidad de La República 32(45):119–145 Sanhueza GE, Candia J (2019) Acceso a la atención sanitaria en cárceles chilenas: una mirada desde los internos. Revista Española de Sanidad Penitenciaria 21(1):5–10 Sanhueza G, Pérez F, Candia J, Urquieta M (2020) Inmate on inmate prison violence in Chile: the importance of the institutional context and proper supervision. J Interpers Violence 36: NP13391–NP13414 Sanhueza G, Ponce F, Melis C (2022) Violencia en la Penitenciaría: observaciones, atribuciones causales y limitaciones desde la mirada de los custodios. Revista Actualidad Penal 93:207–226 Sanhueza G, Urquieta M, Castro A (in press) Reincidencia delictual en ChileChile: Explorando la confluencia de factores institucionales, individuales y territoriales. In: Chile outside the box. Facultad de Economía y Negocios, Universidad de Chile Sykes GM (2007) The society of captives: a study of a maximum security prison. Princeton University Press Tolman RM, Rosen D (2001) Domestic violence in the lives of women receiving welfare: Mental health, substance dependence, and economic well-being. Violence Against Women 7(2):141– 158 Urquieta MA, Mariñez C, Jorquera C (2017) Territorio como medium: Discusión sobre rendimientos analíticos para las observaciones de la complejidad socio-espacial. Revista Mad 37:143–167 Urrutia-Moldes A (2019) Designing to meet physical, psychological, and social Well-being needs in prison. The University of Sheffield, Sheffield Wacquant L (2001) Las cárceles de la miseria. Gedisa, Madrid Weisz AN, Tolman RM, Saunders DG (2000) Assessing the risk of severe domestic violence: the importance of survivors’ predictions. J Interpers violence 15(1):75–90 Zmerli S, Castillo JC (2015) Income inequality, distributive fairness and political trust in Latin America. Soc Sci Res 52:179–192 Zúñiga L (2010) La cárcel enferma: consecuencias para reclusos y vigilantes. Serie documentos electrónicos programa seguridad y ciudadanía

102

G. E. Sanhueza

Guillermo E. Sanhueza is a social worker passionate about prison reform, prison personnel, rehabilitation and social causes of crime. He holds a PhD in Social Work and Sociology from the University of Michigan and currently works as an Associate Professor at Loyola University Chicago, in the United States. He has teaching experience and professional expertise on program evaluation, research methods, and interdisciplinary approaches to social change. Through research grants, publications and dissemination efforts, he has been able to lead efforts in criminal justice reforms in Chile. He also has served as a consultant for the Chilean government in reducing prison violence and improving the training of prison guards and professional staff.

Crisis of the Penitentiary System in Peru in Light of the Fight Against Drugs Ricardo Soberón Garrido

Abstract In the last 50 years Peruvian criminal policy has been focused on a “strong hand” approach, particularly referred to drugs and antiterrorism offenses. This situation has lead to legislative measures that increase punishment, reduce procedural and penitentiary benefits, create new offenses and give more powers to Police and Armed Forces, particularly in certain areas which had been previously appointed as Emergency areas. For those reasons, penitentiary system is absolutely overcrowded, with a general population of more than 90,000 interns when it has space just for 31,000 inmates in the 68 prisons distributed in the country. Almost 20% of them are accused for drug offenses, most of them, minor crimes. While several countries are crossing through an important period of reforms in terms of criminal law and drug offenses, Peru is in the opposite direction. Unless next government does something, we will be facing a huge humanitarian crisis.

1 The Policies on Drugs and Drug Trafficking Have an External Origin The International Conventions of the UN and the foreign policy of the successive governments of the United States and to a lesser extent the European countries, have been and are the main promoters for the process of normative standardization that has taken place among more than 190 countries that have incorporated the treaties and have given specific laws designed to suppress the production, trade and consumption of certain drugs. According to the latest World Drug Report prepared by the United Nations Office against Crime and Crime, the world market for cocaine is

R. Soberón Garrido (✉) Drugs and Human Rights Research Center NGO, Lima, Peru © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Czarnecki (ed.), Human Rights Protection and Ius Puniendi, European Union and its Neighbours in a Globalized World 11, https://doi.org/10.1007/978-3-031-41253-0_7

103

104

R. Soberón Garrido

approximately 20 million permanent users, a captive market that can pay the surcharge generated by the illegality of this.1 Despite the global efforts made by the National Police to seize up to 700 tons of cocaine per year when the illegal market produces approximately 1200 tons of pure cocaine per year, the reality of the figures is harsher. Seen such results objectively, it seems a fundamental success of the anti-drug effort that is being deployed by the international community: more than 50% of the drugs produced are seized by police forces around the world. The truth is that the 500 tons of cocaine that enter the final markets are “cut” and increased by the local mafias with various products, recovering in excess the drug seized by the police authority. For half a century, it has been a true multilateral dilemma to conduct a “war” at the global level that reproduces the phenomenon to be eliminated. Regarding drug prices, we must point out that it is precisely the illegality that drug trafficking produces, which causes an unlimited distortion that cannot be recovered by the efforts made on the side of crop substitution and alternative development: a kilo of cocaine is sold for US $ 1200 in the farms of the VRAEM; When arriving in the city of Lima, that same kilo can cost up to US $ 5000; When it reaches the ships that export it, it reaches US $ 12,000, a price that triples when it reaches its destination, in North American or European cities, before falling on the streets of the cities where the drug continues to be “cut”, in benefit of local mafias. As De Rementería points out,2 the current conditions in which the international trade of natural resources and commodities such as coffee or cocoa works cannot even match this economic distortion promoted by illegality and spurred by the trade protectionism of the OECD countries. In addition, it leads thousands of impoverished peasant producers from the Andes to continue in their migratory destination to the high jungle of Peru to cut down the forest and cultivate coca, which finally leads them to the illegality of drug trafficking, the threat of police repression and the jail. Such efforts have been made under an approach that privileges the possibility of Reducing Supply and Demand, through the application of criminal law, over criminalization and indiscriminate interdiction by the State security forces, including the possibility of the use of the Armed Forces in coca leaf production areas. This has happened like this in the 70s during the military dictatorships, in the 80s with the democratic transition and the beginning of the war against terrorism of the Shining Path, then in the 90s during the Alberto Fujimori regime (which later was involved in serious cases of corruption associated with drug trafficking and serious human rights violations), until the last two decades of the second democratic transition in Peru. It is a pattern of the institutional stubbornness of a state incapable of reacting according to its own interests and needs. In this sense, Peruvian prisons,

1 2

United Nations Office on Drugs and Crime (2021), p. 24. De Rementeria (1995), p. 73.

Crisis of the Penitentiary System in Peru in Light of the Fight Against Drugs

105

police stations, and courtrooms have become the final recipients of this unintelligent and indiscriminate policy. This influence has been much more evident in Latin America than in Europe, due to the historical influence that the North American “Monroe Doctrine” has had on the political and economic development of the 34 countries of the hemisphere. “America for the Americans” pointed out at the time President Monroe to face the last French attempts to have a political and military presence in Mexico at the end of the nineteenth century, but then it was applied as an instrument of geopolitical hegemony during the first part of the twentieth century. During the Cold War (1945–1991) and beyond, it continued to be a predominant factor in US relations with the rest of Latin America.3 The much talked about fight against drug trafficking has become the perfect excuse to interfere excessively in the internal affairs of the countries, through mechanisms of political control, certification or monitoring of compliance with international provisions, by the White House and the State Department. To date, monitoring visits in the field, thematic reports such as those of the State Department,4 national reports, various certifications with deep geopolitical content, even a package of various sanctions to certain countries that do not comply with the quotas for the reduction of illicit crops are frequent. and/or the fulfillment of goals regarding the quantity of drug seized or the number of detainees for drug trafficking. This permanent external influence determines the daily behavior of the police, prosecutors, judges and prison agents in Peru. These are evaluated based on their ability to arrest, prosecute, denounce, accuse and punish, without even understanding that there are serious socio-economic, cultural and therefore criminological differences between a peasant, a dealer, regarding the crime of drug trafficking, about a hit man or a financier who launders money. The biggest flaw in Peruvian criminal policies is their generality, scaremongering, and lack of detail in their application, which can be seen at the levels of police detention and incarceration. As a 2004 South American Church Encounter noted: We request from our leaders a reform of the current legislation to eliminate over-penalization and criminal discrimination; likewise, we ask them to attend to the basic needs of the entire population.5

The North American policy on drugs that is applied in the countries of Latin America ignores a main law of the free market, whatever the good or service in question: it is the demand for a product (whether legal or illegal) and not the supply, which determines the price of this. In this sense, the United States continues to be the largest consumer of cocaine in the world. Eventually, the countries of the Western Hemisphere have been the object of direct or covert interventions promoted by the North American security agencies, as

3

Soberon Garrido (2010), pp. 209–220. U.S. State Department (2021). 5 Episcopal Commission for Social Action (2004). 4

106

R. Soberón Garrido

has happened in Panama in 1989, in Honduras in 2008 or in Bolivia in 2019. All our countries, in one way or another, have been the cause of unilateral interference in internal affairs and penetration of police, prosecutors and judicial bodies when it comes to the fight against drug trafficking, by the Drug Enforcement Agency (DEA), the Federal Bureau of Investigation (FBI), the Southern Command or the Central Intelligence Agency (CIA). In this sense, far from being an instrument for promoting public health or strengthening democracy and the validity of Human Rights in Latin American countries, the US Democratic and Republican governments have used this issue as a instrument to ensure the presence and interference in our national affairs.

2 The Speech of the Hard Hand For some years now, citizen insecurity has been one of the fundamental problems and has most severely affected the most deprived sectors in large Latin American cities such as Rio de Janeiro, Caracas, Bogotá or Lima. In fact, today it becomes one of the most important factors that becomes a threat to the national security of Washington, particularly related to illegal migration from Central America. More than the great organized crime around illicit traffic, extortion, robbery and theft of small urban properties are a concern. They are particularly events that occur in the most deprived geographic areas, call them “favelas”, “villas”, “young towns” or “neighborhoods”, which have become true belts that surround the commercial and financial cities in the Andean subregion. In general, the wealthiest sectors have a greater capacity for police per inhabitant, have private security elements and appropriate technology to prevent the theft of their properties. In this way, the “Hard Hand” speech is frequently used in electoral campaigns in Latin America,6 supposedly to confront the problem of citizen insecurity, symbolically reassuring a population that suffers the consequences of an alarmist press, businessmen fearful of Invest in the impoverished countryside and a society with little social cohesion to assertively face and differentiate the small from the great crime, both at the municipal, provincial and national levels. Fundamentally, political candidates promise more crimes, higher penalties, greater capacity of the Police, states of exception, restriction of guarantees, and benefits that become permanent. In fact, there is more militarization, the recurrence of states of exception, and the criminalization of social protest, are recurring elements. Curiously, a “guarantor” state in terms of criminal policies is not popular with public opinion. This has been happening in Peru since the return to democracy in 2001 and even more so in this electoral process in 2021, by the candidate Keiko Fujimori who has appeared and lost up to three times. It intends to inherit the school of former

6

Rodríguez and Rodríguez Pinzón (2020), pp. 89–113

Crisis of the Penitentiary System in Peru in Light of the Fight Against Drugs

107

president Alberto Fujimori that ruled the country from 1990 to 2000 and that allowed the scandal of the presence of presidential adviser Vladimiro Montesinos who has been accused and convicted of drug trafficking, arms trafficking, and at the same time was a double agent. of the North American intelligence services. At the time of closing this trial, and in the middle of the electoral period, it was discovered that Montesinos, who was imprisoned in the Callao Naval Base together with the leaders of the Shining Path, was able to make more than fifty calls to try to interfere in the presidential elections in course. After 20 years in prison in an irregular military center based on its high danger, these people have been transferred to a normal detention center to avoid such irregularities. The cases of corruption associated with drug trafficking are evident and have caused the interest of the National Congress itself, particularly the case of the infiltration of drug trafficking into national politics.7 However, despite the efforts made to try to investigate how drug trafficking infiltrates resources, interests, and influences even in electoral campaigns, they have not been able to stop it. The “Hard Hand” has various effects, at the electoral level, the social level, and the institutional level. They encourage indiscriminate action whose most effective results are the measurement of success by the number of detainees, investigated, processed, and sentenced. The repressive anti-drug discourse is multifunctional for the State and its promoters, even though in practice it implies the renunciation of respect for guarantees and fundamental freedoms, such as the presumption of innocence, or the right to a fair trial. It is useful in electoral, and international terms, as well as in agrarian, cultural, and, of course, criminal matters. USAID has appropriated cooperation in prevention and repression, having practically “kidnapped” the main anti-drug agencies, from DEVIDA, DINANDRO, and the Public Ministry, adapting them to its interests and perspectives. Even though the world and particularly Latin America are experiencing very concrete examples of procedural reform and the reform of repressive and prohibitionist policies on drugs (Uruguay in the case of cannabis and Bolivia in the case of the coca leaf8), the truth is that there is much resistance to making effective changes. Peru is a paradigmatic case against these reforms. In 2017, the Congress of the Republic approved Law 30,681, the first norm that regulates the therapeutic use of cannabis, after intense resistance from mothers of medical users, and a small but intense cannabis movement, unbelievably the political forces put themselves agreed to approve a Law in favor of therapeutic uses, essentially symbolic as it was still very restrictive.9 It is a first and timid attempt to regulate a medical issue with the greatest amount of evidence in the world, but which faces the conservatism of society, the Church

7 Multiparty Commission in charge of investigating the Influence of Drug Trafficking in Political Parties, Regional and Local Movements (2016). 8 Soberon Garrido (2013), pp. 27–39. 9 Soberon Garrido (2016), pp. 179–184.

108

R. Soberón Garrido

Table 1 People arrested for trafficking and drug consumption 2012 12,227

2013 10,455

2014 11,130

2015 13,625

2016 13,259

2017 13,174

2018 11,137

Source of Data: Ministry of the Interior and National Institute of Informatics and Statistics of Peru. https://www.inei.gob.pe/media/MenuRecursivo/publicaciones_digitales/Est/Lib1691/cap02.pdf

and even the Western medical union. The then government took 2 years to regulate the law and only recently has a reform been approved to allow “self-consumption” also limited to medicinal purposes.

3 The Criminal System Is Saturated The criminal system is made up of the National Police of Peru, a body of 140,000 members, which gives an average of 673 inhabitants when the recommended is one for every 200 inhabitants. At the constitutional level, the Police have the task of preventing and combating crime, but the serious problem they have is that the scope of the task they receive from a weak and little present State in the territory and from an anomic and informal society exceeds their operational capacity. According to the latest National Survey on Police Stations, the Loreto department which occupies 28% of the Peruvian territory, has only 44 of the 1495 Police stations accounted for.10 An example of this is that the Police recognize that they still detain consumers even though it is not a crime. Unfortunately, in our professional practice at the Center for Drug and Human Rights Research, we have found a systematic practice of police corruption in police stations and police stations in the districts of Lima that is reproduced in the streets against users and in the fields against peasants. The threat of detention for up to 15 days, and the implications of being prosecuted for the crime of trafficking with high penalties, subject to the weighing of the drugs found, play against the victim (Table 1). Sequentially, the Public Ministry follows, better known as the Prosecutor’s Office. He is the director of the investigation and has the leading role under the current accusatory penal system; it also has the mandate to protect human rights. In accordance with its actions in anti-narcotics matters, we believe that the Public Ministry fulfills its accusatory role more than it protects freedoms: social pressure itself forces it to show rudeness in determining the crime, especially when it comes to so-called illicit drugs. Likewise, it does not make an effective review of police reports nor does it become an adequate filter to select truly dangerous behaviors. It is unable to monitor and identify the behavior of a complex criminal organization, thus producing a true

10

VI National Survey on Police Stations, INEI, 2017.

Crisis of the Penitentiary System in Peru in Light of the Fight Against Drugs

109

cover-up from the heads of organizations involved in large drug trafficking and money laundering. This is very common in the various forms of drug trafficking established by the 1991 Penal Code: while it shows an enormous capacity to report users and producers of coca and cannabis leaves, it is unable to adequately process and report cases of money laundering. Then comes the rigid, hierarchical Judicial Power, made up of three instances. It is divided into civil, criminal, constitutional, and commercial matters. This institution is in charge of enforcing an old Penal Code that dates back to 1991 and that obeys other times. It has been subject to successive changes, basically following an expansive criterion, but without any specific parameter. The origin of the drug problem in Peru parallels the approval of the first international agreements, still at the time of the League of Nations, then with the adoption of the UN system (1961, 1971, and 1988). In this sense, in the last halfcentury, we have been faithful applicants of the interdiction and prohibition recipe despite the fact that in the same period, we have seen a lot of inefficiency and corruption up to the highest levels of government, In 1978, the entities of the Peruvian criminal system were charged with the fight against drug trafficking. Curiously, the formal beginning of the drug crackdown coincided with the end of a military government that was later indicted for “Operation Condor.” It is said that the adoption of the anti-drug legislation composed of Decree Law 22095 and the establishment of the coca monopoly through a monopoly company called ENACO, coincided with the North American promise to prevent the persecution of the military accused of serious violations of the laws. Human rights. Finally, the Italian justice had to be the one to prosecute former President Francisco Morales Bermúdez for such events, while in Peru this illegal decree law remains in force and continues to be applied by the Police in their daily operations. From then until now, Peru has always occupied one of the top three places as a producer of coca leaf, a raw material from which cocaine sulfate and cocaine hydrochloride are extracted, despite the efforts made by the United States. UU for including and maintaining Peru as one of its strategic “partners” in the fight against drug trafficking. Even one of the effects of the mining “boom” that generated significant national economic growth (1992–2014) is that it was not distributed equitably; Furthermore, as we confirmed in previous work, rural and informal sectors of Peruvians were tempted to fall into the different phases of drug trafficking crime, particularly as peasants, backpackers, mules and street drug dealers, producing a reconfirmation of criminality associated with drug trafficking at the local level.11 In 2011, for 8 months we held the position of “Anti-drug Czar” during the supposedly reformist government of President Ollanta Humala. We tried to make visible the poor experience and results of the compulsive eradication of coca crops promoted by the United States Embassy and we suffered the consequences: an

11

Soberon Garrido (2007), pp. 182 ff.

110

R. Soberón Garrido

incessant media attack against me as a promoter of drug legalization until being forced to leave. of the position. Making of an individual and/or collective problem (psycho and/or sociological), to be treated in a repressive way, through the threat of punishment or jail. Currently, according to INPE, there are 86,812 prisoners in Peru, and the prison system has the capacity to house only 40,899 inmates. 15,396 of these are incarcerated for some crime related to drug trafficking (see Table 2). This makes drug trafficking crimes an important cause of imprisonment in the country. A specific case is the issue of possession and consumption of illicit drugs referred to in a previous work where the disagreement between the Police and drug users is evidenced (Soberon 2013), which according to the figures is not a fundamental public health problem in Peru (MINSA, CEDRO). Before the issue of alcoholism and smoking is found according to the various epidemiological surveys carried out. The first contradictory factor of drug policies is that according to the epidemiological reports of the Ministry of Health, alcohol, and tobacco are real public health problems, but both are perfectly legal, pay taxes, and even promote sports activities and cultural in the country. In other words, the entire repressive charge of the Peruvian State is directed against cannabis and the coca bush, in addition to other traditional psychoactive plants among the indigenous population such as ayahuasca or San Pedro. From the point of view of the Andean Amazonian Indigenous Peoples, this constitutes a form of contradiction and non-compliance that the States have in accordance with ILO Convention 169 on Indigenous Peoples. A second element is that since alcohol and tobacco are the starting drugs for young Peruvians, the preventive efforts of the Peruvian State are practically non-existent in this regard. Quite the contrary, most advertising for alcohol and tobacco products is prone to encouraging early consumption of these. In the case of coca cultivation, since 1978 the Peruvian control system differentiates them between traditional peasants and the rest. This second group is subject to interdiction and eradication actions by the Police. Traditional peasants are illegally subject to a state monopoly system, which violates their right to commercialize their production. Article 296 of the Penal Code does not include the cultivation of the coca plant or the consumption of drugs, as an integral part of the crime of Illicit Drug Trafficking. In formal terms, the chain punishable by drug trafficking begins in the maceration ponds where the coca leaf is converted into a base paste, after adding the necessary chemical inputs. However, the peasants of the Selva Alta who have coca on their plantations, Likewise, article 299 of the Penal Code 12 indicates that drug use is not punishable but leaves the actual determination in the hands of the judge when establishing a 12 Article 299: Possession of drugs for one’s own immediate consumption is not punishable, in an amount that does not exceed five grams of basic cocaine paste, two grams of cocaine hydrochloride, eight grams of marijuana or two grams of its derivatives, one gram of latex of opium or two hundred milligrams of its derivatives or two hundred and fifty milligrams of ecstasy, containing Methylenedioxyamphetamine—MDA, Methylenedioxymethamphetamine—MDMA, Methamphetamine or similar substances.

Criminal population 86.812

Processed offenders 30.984

Sentenced offenders 55.828

Major drug offenses 3037 (3.5%)

Source of Data: INPE Statistical Report, May 2021, https://siep.inpe.gob.pe/form/reporte

Shelter capacity 40.899

Table 2 Inmates for drug crimes in the Peruvian prison system micro marketing offenders 1073 (1.24%)

Basic drug offenders 6689 (7.71%)

Promotion of drug offenders 4597 (5.3%)

Crisis of the Penitentiary System in Peru in Light of the Fight Against Drugs 111

112

R. Soberón Garrido

table of quantities (up to 1 g of cocaine and 8 g of cannabis), after which the possessor becomes a dealer. However, in practice, the Peruvian Police in their daily actions incorporate the possessing user, as a suspect of illicit trafficking at the time of carrying out operations and raids in the streets of Lima. Let the Prosecutor determine—after up to 15 days of police detention that the 1993 Constitution allows in drug trafficking cases—that the possessor of drugs is a simple user and not a trafficker. This means that people who are responsible users of substances such as cannabis are permanently threatened, and cases of police corruption are recurrent.13 Among the main impacts of the implementation of anti-drug policies coming from abroad, together with the effects of the implementation of the discourse of “hard hand” in drug crime cases, is that it is confirmed as ILANUD points out when it analyzes the Latin American prison reality: Absence of comprehensive policies (criminological, human rights, penitentiary, rehabilitation, gender, criminal justice);14

This has resulted in a series of distortions that are concentrated in the operation of the Peruvian prison subsystem: 1. Extensive criminal programming related to crimes against public health, prioritizing illicit drug crimes, linked to administrative lists 2. Non-grading of subtypes according to the different severity of behaviors related to drug production, trafficking, and consumption 3. Advancement of the crime that violates the principle of legality. 4. Widespread use of dubious forms, such as drug courts, protected witnesses, controlled delivery, and bounties. 5. Abuse of preventive detention 6. Detention in police headquarters for up to 15 days, dangerously extending the 24-h limit for the rest of the crimes. 7. Limitations for the use of guarantee measures for the protection of rights. 8. A disproportionate system of penalties that includes periodic discussions and debates for life imprisonment and even the reinstatement of the death penalty. The continuation of the before mentioned distortions in criminal policy and particularly in the penitentiary subsystem have a profound impact in terms of the validity

Possession of two or more types of drugs is excluded from the scope of the provisions of the preceding paragraph. Possession of cannabis and its derivatives for medicinal and therapeutic purposes will not be punishable either, provided that the amount is necessary for the treatment of the patient registered with the Ministry of Health, supervised by the National Institute of Health and DIGEMID, or by a third party. That is under their care or guardianship, or for research according to the laws on the matter and the provisions established by the governing body. 13 Between 2011 and 2016, CIDDH led a free legal assistance effort called the “Green Line”, which dealt with the provision of legal assistance in cases of illegal police detention for the use of cannabis. There were approximately 300 cases in which the request for “bribes” and bad practices by police elements were recurrent. 14 Carranza (2009), p. 29.

Crisis of the Penitentiary System in Peru in Light of the Fight Against Drugs

113

of the various human rights involved, such as freedom, physical integrity, health, and education, to name the most important. They are a direct consequence of the domestic implementation of the international drug treaties, within the framework of the United Nations. This results in countries such as Peru systematically failing to comply with their international obligations regarding Human Rights and prison treatment, as is the case with the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Covenant on Economic and Social Rights. and Cultural Rights of 1976, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. According to OACNUDH,15 the reality of prison practice in our region affects the right to a quality of life, resocialization, classification between defendants / sentenced, and security in prisons, among the most important. Likewise, they do not comply with the provisions of the General Report of the Standing Committee of Latin America for the Review and Update of the United Nations Minimum Rules for the Treatment of Prisoners. The only way to end these distortions is by attacking the root of the prohibitionist paradigm that remains in force in much of Latin America. To this end, we endorse the recommendation made by the international community meeting in 2009 in the Commission on Narcotic Drugs from which the Action Plan emerged, which, although it does not specifically mention the prison problem, states: “Ensure that demand reduction measures respect human rights and the inherent dignity of all people and facilitate access for all drug users to prevention services, health care and assistance social, with a view to social reintegration”.16 Women detained in the Peruvian prison system suffer triple discrimination from the state: because of the type of crime, because of their condition as women, and because of their socioeconomic status that prevents them from having a paid defense. Frequently, women involved with drug gangs as producers, traffickers, or dealers, are the weakest link in the illegal chain. They get involved due to their material needs for survival. In 2015, Cecilia Romero Chica was a 40-year-old woman arrested and convicted for a minor illicit drug trafficking offense committed due to economic pressure (she was a single mother responsible for her family). During her stay in prison, she developed stomach cancer that severely affected her health. Cecilia never received cancer treatment. For many months, our legal team at the Center for Drugs and Human Rights Investigation (CIDDH), pushed for her release on humanitarian grounds so that she could spend her last days with her three children. Finally, the authorities gave Cecilia the opportunity to enjoy a few days with her family, before her death.17

15

Office of the United Nations High Commissioner for Human Rights (2004). Political Declaration and Plan of Action on International Cooperation for a Comprehensive and Balanced Strategy to Counter the World Drug Problem, High-Level Series of Sessions of the Commission on Narcotic Drugs, Vienna, March 11–12, 2009. 17 In the CIDDH’s institutional files are all references, documentation medical and legal reports related to Romero’s case. 16

114

R. Soberón Garrido

References Carranza E (2009) Criminality, prison and criminal justice in Latin America and the Caribbean, 1st edn. ILANUD, p 29 De Rementeria I (1995) The choice of drugs. Control policies review, 1st edn. Friederich Ebert Foundation, Lima Episcopal Commission for Social Action (2004) Memory “Drugs in society and in prison: a challenge for pastoral care, bolivarian encounter of penitentiary pastoral care”. Episcopal Commission for Social Action, Lima, p 100 INEI 2017, Censos Nacionales 2017: XII de Población, VII de Vivienda y III de Comunidades Indígenas, revised on November 13th 2023, in: https://censo2017.inei.gob.pe/ Multiparty Commission in charge of investigating the Influence of Drug Trafficking in Political Parties, Regional and Local Movements (2016) Drug trafficking and politics report. Congress of the Republic, Lima Office of the United Nations High Commissioner for Human Rights (2004) Human rights and prisons. Human Rights Training Manual for Prison Officers, New York, Geneva. https://www. ohchr.org/documents/publications/training11sp.pdf. Accessed 17 Aug 2021 Political Declaration and Plan of Action on International Cooperation for a Comprehensive and Balanced Strategy to Counter the World Drug Problem, High-Level Series of Sessions of the Commission on Narcotic Drugs, Vienna, March 11–12, 2009 Rodríguez T, Rodríguez Pinzón E (2020) Mano dura y democracia en América Latina: seguridad pública, violencia y estado de derecho. América Hoy 84:89–113 Soberon Garrido R (2007) Drug control in Peru in the age of democracy. In: The devils speak: amazon, coca and drug trafficking in Peru. TNI Collection Dialogues and Movements, Lima, p 182 ff Soberon Garrido R (2010) National dynamics, relations with the US and the new Latin American institutionality. In: Yuyakusun yearbook, No. 3. Academic Department of Humanities, Ricardo Palma University, Lima, pp 209–220 Soberon Garrido R (2013) The attempts to reform drug policies in Latin America. In: URVIO Latin American journal of citizen security, No. 13. FLACSO Ecuador, pp 27–39 Soberon Garrido R (2016) The medicinal use of cannabis from a constitutional approach. J Const Gaz Const Proc 101:179–184 U.S. State Department (2021) International narcotics control strategy report. https://www.state. gov/2021-incsr-volume-i-drug-and-chemical-control-as-submitted-to-congress/. Accessed 15 Aug 2021 United Nations Office on Drugs and Crime (2021) World drug report. United Nations, Vienna. https://www.unodc.org/unodc/en/data-and-analysis/wdr2021.html. Accessed 11 Aug 2021

Ricardo Soberón Garrido, Peruvian lawyer incorporated to the Limá’s Bar with Number 21099. In 1999 obtained M.A. on International Politics from Peace Studies Department, University of Bradford. Former Executive President at DEVIDA, Peruvian Drugs Commission (2011, 2021– 2022). With experience as Parliamentary advisor (2016–2019) and current President at the Drugs and Human Rights Research Center, a private NGO based in Lima. Since 2020, Program Coordinator of Project on Citizen Governance at United Nations Development Program.

Prisons in Argentina and Challenges of Human Rights Emiliano Blanco and Mariano Arrigo

Abstract The chapter sheds light on work and educations among prisoners in Argentina. The authors make a brief description of the influence of critical criminology in the Argentine, its legislation and scope of the postulates of applied criminology. The authors describe work and education inside prison, how it is conceived and applied. On the other hand, the possibility to apply risk and desistance models in prison treatment in Argentine’s system and the importance of conceiving job training, work of people deprived of their liberty, and education in confinement contexts as key factors in reducing recidivism. Finally, the authors establish some key points to discuss in further public policy and legislation.

1 Introduction In 1996, the Argentine Republic sanctioned Law N° 24,660, which regulates the execution of prison sentences. This legislation takes as one of its main aims the acquisition of the capacity to understand and respect the law by the inmate, seeking his adequate social reintegration.1 To do so, the Argentine legislator decided that

1 Art 1 of Law 24,660 in its original version. Later in 2017, through Law No. 27,375 and thanks to the efforts made by the Directorate of the Penitentiary Administration at that time, it was possible to make the aforementioned article more topical, its current wording being as follows: “The execution of the custodial sentence, in all its modalities, has the purpose of ensuring that the convicted person acquires the capacity to respect and understand the law, as well as the seriousness of his acts and the imposed sanction, seeking his adequate social reintegration, promoting the understanding and support of society, which will be part of the rehabilitation through direct and indirect control. The

E. Blanco (✉) International Correction and Prison Association Latin America, CABA, Buenos Aires, Argentina M. Arrigo Institute of Criminology, Argentine Federal Prison Service, CABA, Buenos Aires, Argentina © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Czarnecki (ed.), Human Rights Protection and Ius Puniendi, European Union and its Neighbours in a Globalized World 11, https://doi.org/10.1007/978-3-031-41253-0_8

115

116

E. Blanco and M. Arrigo

work and education should be the fundamental tools that would serve as the basis of treatment. The norm establishes as a guideline that the work be compulsory.2 It was later understood that the work activity was a right and obligation of the inmate, but also rewarding those demonstrations that reflect an adequate interest in learning trades.3 Finally, the legislator understood that work in prisons should be governed by the rules established in the legislation inherent to free work.4 Regarding education, it is established as a right (not an obligation) of all persons deprived of their liberty to receive public, comprehensive and permanent education.5 In order to understand the context in which sentence execution takes place in Argentina, it is necessary to highlight some characteristics that make up both its practical and theoretical aspects. The most influential academic circles have taken critical criminology as support for their views on criminal science, and consequently with it the execution of the sentence. The prison administration has remained intact in terms of its structure and ideology as a security force, without being able to live up to the demands required by the advances of penitentiary science, especially since the dawn of democratic recovery. The lack of information systems, statistics and the generation of studies based on empirical evidence and public policies designed on the basis of these postulates, has characterized the practical and theoretical genesis of the future of criminological science in the region and, in particular, in Argentina. Prison administrations have chosen to work in the same direction, oscillating between the partial or total impossibility of complying with the many general and particular recommendations of the control bodies (in Argentina, there are 12 control bodies6) and the dissimilar and varied judicial resolutions emanated from the competent judges in the jurisdictional control and execution of the sentence. Consequently, while applied criminology traced the methodological course of prison work, and the Anglo-Saxon world was in full application of the Risk, Necessity and Responsivity Model or studies on the desistance of crime began to

penitentiary system must use, in accordance with the circumstances of each case, all means of interdisciplinary treatment that are appropriate for the stated purpose”. 2 Art 5 of Law 24,660: The treatment of the sentenced person must be scheduled and individualized and mandatory with respect to the rules that regulate coexistence, discipline and work. 3 Arts. 106 and 105 law 24,660. 4 Art 117, Law 24,660. 5 Art. 133, law 24,660. 6 Inter-institutional Prison Control System, National Penitentiary Ombudsman, Control System from the Publuc Defense, Administrative Investigation Attorney, National General Syndicate, National General Audit, National Criminal Execution Judges, National Ombudman, National Committe agains tortuure, Provincial Comision for Memory, and other NGO s, such as, CELS among others.

Prisons in Argentina and Challenges of Human Rights

117

seek their place in the world of a dynamic and multifactorial7 criminology, in Argentina it was clear that work and education in prisons would not have the purposes they have been attributed in history8 and would be the factors on which a person will be rehabilitated.

2 Most Relevant Aspects of Labor Activities Within Prisons: Their Legal Nature and Compensation 2.1

The Legal Nature of Labor Activities Within Prisons

The organization of work within the federal prisons9 of Argentina is designed, organized and coordinated by the Entity for Technical and Financial Cooperation (Encope).10 Its purpose is limited exclusively to organizing the tasks carried out by persons deprived of their liberty and the labor workshops. In this way, Encope manages 255 workshops that operate in 28 federal penitentiary units, and where 77% of the total prison population works11 (11,470 inmates as of 2020) according to the National System of Statistics on the Execution of Sentences—SNEEP12—2020. Now, the existence of a certain consensus in the international community allows us to conclude that prison work is included in the catalog of actions that the penitentiary administrations of the different States—in this case, those of this region—must carry out with the objective of improving the chances of re-socialization of individuals deprived of liberty, reducing the differences between life in prison and life outside of it. Let us remember, in this sense, that after the Industrial Revolution, which occurred in the eighteenth century, the need arose for a special legal regulation 7

There is an ample consensus in the specialized literature on the following factors: Capacity for economic self-support, Housing, Composition and family situation, Access to work, Access to education, Access to health, Drug abuse, Alcohol abuse, Psychiatric or psychological pathologies, Ability to control impulses, Criminal history, Prevalent link between these factors and the commission of crimes. 8 The most relevant doctrines in this regard are the following: (a) Work as punishment, of a cruel and afflictive nature, (b) Utilitarian work, (c) Corrective work and (d) Humanitarian work. 9 Each penitentiary service belonging to each province has its own system, only the federal one is constituted in this way and with its own budget. 10 Body created by Law 24,732. 11 Statistics come from the calculation of payment for worked hours, which ranges between 10 and 40 h per week and not on the work actually carried out in the workshop. Most of the hours are spent on cleaning tasks. 12 The National System of Statistics on Sentence Execution (SNEEP) is the official prison statistics of the Argentine Republic and shows the evolution and characteristics of the population deprived of liberty in penitentiary units throughout the country. It is prepared by the Ministry of Justice and Human Rights of the Nation.

118

E. Blanco and M. Arrigo

regarding work. This regulation forced the labor system to adapt to new paradigms, neglected until then; the most important of which have been the respect for the dignity and the protection of workers. With the generalization and standardization of the notion of “work as a right, equal to the free society” conflicts began to arise between the norms that regulate the prison function—oriented towards security—and the norms that regulate work— oriented towards addressing the existing imbalances between workers and employers and guarantee minimum conditions of comfort in its development. So, does labor law apply to the work of people deprived of their liberty? There has been no general answer to the question. In general, labor legislation assumes that the employment relationship normally originates with the conclusion of a contract and, exceptionally, by imposition of the law. As for the subjects, in the prison employment relationship we have, on the one hand, the prison administration—or specific body derived from the public administration—and, on the other, the inmate—convicted or prosecuted-. Convicted persons can, through specifically regulated systems, enter into different kinds of contracts. There is a legal relationship between a person deprived of his liberty and the prison administration and that, in general, it is governed mainly by Administrative Law. Said relationship stems from the well-known ius puniendi, which places the State as the active subject of the relationship and the criminally prosecuted for the possible commission of an illegal act or sentenced person as a passive subject. The penitentiary administration, then, must stick to administering the restrictions reached by the sentence and watch over and guarantee the exercise of fundamental human rights. This situation necessarily leads to the original legal relationship of administrative law acquiring, at least, a special character, since in the exercise of such rights (in addition to those necessary for resocialization) it begins to rub against the limits and scope of the legal relationships that emerge from a system of total institution with the rights of the free society. Consequently, this definition allows us to affirm that we are faced with a sui generis relationship, in which all the issues that are at stake in prison work must be considered and amalgamated. In recent years, in Argentina this comparison has generated different positions and consequent judicial rulings. In the case of the Nation’s Penitentiary Attorney s/habeas corpus FBB 7825/ 2016/1I11RH1, the Supreme Court of the Nation, the highest court in Argentina, set a precedent in which work in prison is equal to that carried out in free society, by establishing parity between the Labor Contract Law13 and the Law of Execution of the Prison Sentence of Freedom.

13

Labor Contract Law 20,744.

Prisons in Argentina and Challenges of Human Rights

119

Previously, the Federal Criminal Cassation Chamber, an intermediate court between the courts/tribunals and first instance and the Supreme Court, in case 1318/13 Kepych Yúry Tibériyevich s/appeal of cassation14 decided that: – With regard to work, every prisoner has the “right of every person to have the opportunity to earn a living through freely chosen or accepted work”. – the work provided by persons deprived of ambulatory freedom is covered by the general principle of protection or “protective” provided for by art. 14 bis of the Constitution, which establishes that “work in its various forms will enjoy the protection of the laws, which ensure the worker: decent and equitable working conditions; limited day; paid rest and vacation; fair compensation; minimum, vital and mobile salary; equal pay for equal work; participation in company profits, with production control and management collaboration; protection against arbitrary dismissal; stability of the public employees, free and democratic trade union organization, recognized by the simple registration in a special registry. . .” Without prejudice to what was resolved by the Cassation Chamber, there are other precedents that understood the rehabilitative basis of work in prisons. In case CCC 80199/2018/CA1,15 the National Court of Appeals of the City of Buenos Aires ruled that: – “There is no initial employment contract or fixed salary, since the economic remuneration is made for hours actually worked. Therefore, neither are suspensions, resignations, dismissals nor—obviously—compensation for them, paid vacations, or special licenses. The remuneration received by the inmate does not have a food nature, since his primary needs are covered by the State and there is no lucrative purpose for the prison authority, without prejudice to the retentions that are practiced in accordance with the provisions of art. 121 of Law 24,660. . . . “It is only the choice of the inmate to be part of a treatment aimed at his social reintegration that, if he accepts it and complies with it satisfactorily, will be projected in benefits in the way he serves his detention”. – “In this regard, article 72 of the Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955, establishes that the organization and methods of prison work should be as similar as possible to those applied to similar work outside the establishment in order to prepare prisoners for the normal conditions of free work. However, the interest of prisoners and their

14

https://www.cij.gov.ar/nota-14499-La-C-mara-Federal-de-Casaci-n-Penal-hizo-lugar-a-un-hbeas-corpus-colectivo-en-un-caso-por-el-trabajo-de-los-presos.html. 15 http://www.pensamientopenal.com.ar/fallos/47743-trabajo-carcelario-diferencia-haberes-noequiparacion-al-trabajo-medio-libre-fines-no.

120

E. Blanco and M. Arrigo

professional training should not be subordinated to the desire to obtain financial benefits from a prison industry.”16 As we can see, broad interpretations of the regulations without previous empirical studies and implementation times, end complicating the day-to-day in prison, affecting the budget, increasing the judicial conflict of public policies and, above all, affecting the fulfillment of inmate rights by the State. Below we will analyze some of the main issues that contribute to this state of affairs.

2.2

Remuneration for Labor Tasks Within Prisons

In the penitentiary literature, stipend (peculio) is usually spoken of when referring to the salary or remuneration received by inmates for the working activities. In Argentina,17 it is established that the salary must not be less than three quarters (¾) of the Mobile Minimum Wage. It is noteworthy that legislation in Argentina intentionally does not contemplate the compensation received for work in prisons as equal to free society. For example, the sums received for work in prisons do not conform to the principle of integrity of the payment of remuneration that governs in free society. This differentiation is a clear indicator that we are facing a particular legal relationship, where the exact equality of rights and duties generates great distortions. Not for nothing the legislator makes this disquisition in one of the key issues of the employment relationship, such as such as the amount of money received for the work done. The money symbolizes the achievements concerning the skills and responsibilities that are acquired daily through the various treatment programs. Let us remember that, in general and by legal rule, prison work activities do not usually pursue strictly economic goals, which in most cases means that the workshops are not efficient in commercial, industrial and economic terms. Of the remuneration received by the inmate for the work carried out in the penitentiary establishments, 30% is destined to make up his own fund that will be delivered to him when he is released.18 This reserve fund tends to provide economic sufficiency for a certain time, facilitating the transition and/or adaptation in the free society until obtaining a job, according to the skills and responsibilities acquired during his stay in prison. People who have been released from prison often identify employment as one of the most important factors in their efforts to remain crime-free

16

http://www.pensamientopenal.com.ar/fallos/47743-trabajo-carcelario-diferencia-haberes-noequiparacion-al-trabajo-medio-libre-fines-no. 17 Art 120, law 24,660. 18 Art 121 inc d, law 24,660.

Prisons in Argentina and Challenges of Human Rights

121

after incarceration.19 It cannot be forgotten that after release, people must face innumerable obstacles that prevent or hinder their social reintegration.20 Post-prison jobs are usually informal, such as street vending, but still allowing them to earn money, as opposed to crime.21 But this is not the only, nor the main objective, together with economic sufficiency we find that the reserve fund plays a fundamental role in reducing recidivism. The sum that is generated as a reserve fund tends to generate economic selfsufficiency to last between 3 and 6 months; period in which there is a high probability that the person will commit a new crime. In Argentina, due to a culture of rejection of empirical evidence based on the support of critical criminology, studies of this nature have not been carried out. It is desirable that in the future all bodies in charge of sentence execution, as well as its follow-up in the free society, carry out studies of this type for the purpose of not only to give the ruling a meaning adapted to the new criminological perspectives, but also to generate the direction of a penitentiary and post-penitentiary policy that contributes to improving people’s lives through effective social integration. However, there a possibility for the inmate, exceptionally, to receive in advance 30% of the reserve fund. Article 127 Law 24,660,22 establishes that the penitentiary administration may authorize the allocation of up to a maximum of 30% of the monthly own fund as an available fund, provided that the inmate has at least achieved the qualification of good conduct, the purpose of withdrawing said sum being the acquisition of articles for personal use and consumption authorized by the regulations. However, reality shows that the judicial authorities distort the function of the reserve fund by authorizing its early withdrawal and collaborating with the creation and maintenance of an informal economy. The amounts received in advance usually have different destinations. The main ones are: (1) The inmate’s family, (2) Integrate what is available for articles for personal use and consumption authorized by the regulations within the “canteens” that the establishments have, (3) Making transfers between the inmates themselves. This situation represents a problem because: 1. Upon release, the inmate does not have the amount of money necessary to face the transition and/or adaptation in the free society until he obtains a job.

19

The Council of State Governments, Justice Center, National Reentry Resource Center, What Works in Reentry Clearinghouse: Employment, http://whatworks.csgjusticecenter.org/focus_areas/ employment-topic. 20 Espinoza et al. (2008); Villagra (2008). 21 Villagra et al. (2010). 22 Article 127 of Law 24,660 states the following: The penitentiary administration may authorize up to a maximum of 30% of the monthly own fund to be used as available funds, provided that the inmate has attained at least the qualification of good conduct. The available fund will be deposited in the establishment at the order of the inmate for the acquisition of items for personal use and consumption authorized by the regulations.

122

E. Blanco and M. Arrigo

2. A prison informal economy is generated, given that many times what is acquired in canteens is usually “barter” currency for other elements that may come from free society as well as from the intramural sphere. This situation can also be aggravated by inter-inmate transfers. 3. The purpose of the reserve fund is distorted, increasing the risk of recidivism. 4. The prison administration does not have the means to determine what are the underlying motives that originate transfers between inmates, which can lead to situations where some group of inmates can pressure another/s to obtain economic advantages. On the other hand, as was said, the prison administration is empowered to decide on the early withdrawal of the reserve fund,23 and its purpose is to encourage the inmate to maintain a good grade in regard to his behavior, or to improve it. This can only be achieved through the fulfillment of the objectives that are planned regarding the treatment during the time in which the person must remain serving his sentence. However, the power arrogated by the judges to allow the early withdrawal, has distorted this purpose and have the following consequences: 1. Increases the possibility of recidivism. 2. Generates and maintains an informal economy both inside and outside the prison walls. 3. Increases the chances that situations drift to pressure of some group of inmates to others in order to obtain economic advantages. 4. Undermines the incentive purpose of article 127 of Law 24,660. 5. Increases the risk of conflict between persons deprived of liberty, given that inmates are not required to behave in a certain way within the penitentiary facilities for the withdrawal of the advance from the reserve fund. It is hoped that once released, people can take control of aspects such as housing, money and employment. Therefore, preparation for this transition is crucial and requires an intervention in financial management, which is why we believe that pre-graduate programs should consider the possibility of including education and capacity in financial management. It is not simply about granting work in conditions of equality to the free society; this conception that has contributed little to public security must be overcome to go in line with the best international practices, aiming to reduce recidivism rates, promote the desistance of crime and attend to public protection. It has been shown that payment for work done in prisons can discourage participation in education and/or training programs and much more those of job training without an expectation. In this way, the work carried out in the different workshops that are carried out in the penitentiary centers must be accompanied by adequate professional training and programs in the management of financial resources aimed at ensuring that the person

23

Art 127, law 24,660.

Prisons in Argentina and Challenges of Human Rights

123

can achieve self-sustainability after release, thus allowing him to have a dignified life and free from crime. The data speaks for itself. According to the SNEEP 2020, at the federal level, the employment situation at the time of entry of inmates showed that 47% were unemployed and 27% had a part-time job (and informal) and in terms of professional training only 19% said they had a profession, and 37%24 some trade while 44% had no training. At the national level, out of a total of 94,944 people deprived of their liberty, 40% were unemployed, 39% had part-time (and informal) work, and only 21% declared they had a full-time job at the time of admission. Regarding job training, 47% had neither a trade nor a profession, 42% declared they had a trade and 11% a profession. It is then a matter of overcoming the “welfare” vision that is held towards people deprived of liberty,25 to focus all efforts around a true dignified treatment of the individual, where the development of their skills and the stimulation of their potentiality will constitute goals to achieve effective independence from crime as a means of livelihood. Thus, the anachronistic conception of social reintegration, which was supported by formal education and work, has been overcome by new postulates that understand prison treatment as a set of tools aimed at addressing the specific problems presented by the person. Hence, to speak of work in the same conditions as those of free society, without understanding its specificity within prison treatment, is to defend an idea of social reintegration that is empty of content, reductionist and far from the conception of being human, understood as a set of needs, emotions, cognitions, experiences and beliefs, on which work must be done to provide the necessary assistance, and achieve a better quality of life. Preparing people for their return to society in a safe way for them and for the whole community is one of the main tasks of penitentiary institutions. An issue that does not end in prisons, since post-prison containment contributes to a successful return to free society. The reduction of recidivism is not then only a matter of correctional agencies. It involves a true State policy where all institutions are involved, and truly understand what proper prison treatment means, which far from sustaining the already failed idea of social reintegration, directs its resources and efforts in pursuit of a single challenge: effectively achieving public safety in all its aspects.

24

The majority declare that they know trades related to construction or commerce. The settlement of working hours is not always accompanied by an effective verification of actual work, especially if one considers the fact that the greater number of hours are settled in cleaning, which is usually quite questionable in all Argentine prisons.

25

124

E. Blanco and M. Arrigo

3 Education in Confinement Contexts 3.1

Situational Analysis

Another of the fundamental aspects that the Argentine legislator has taken into account when carrying out the reintegration ideal has been education. According to the SNEEP 2020, of the total federal prison population, that is, 11,470 inmates, 26% have incomplete primary education; 27% complete primary education; 27% incomplete secondary education; 13% complete secondary education; and top 5% (only 74 interns with completed tertiary education and 135 with completed university education). At the national level, of a total of 94,944 people deprived of their liberty, 7% said they had no education, 23% did not complete primary school, 35% primary and 10% complete secondary, and 23% have not completed secondary and only 2% have tertiary and university studies (270 completed university and 636 tertiary). Education in prisons is provided by teaching staff who are properly registered with the National Ministry of Education, and in many cases are also registered with the teaching staff of the Federal Penitentiary Service. In this way, education is carried out for all persons deprived of liberty, with an educational offer of literacy, and primary, secondary and higher levels (tertiary and university). Notwithstanding this, within the scope of the prison administration there is the Directorate of Education, Culture and Sports within the National Directorate of the Federal Penitentiary Service, which is responsible for conducting various educational and/or cultural workshops. Thus, both prison staff and teachers of civil institutions converge in the education and training of people deprived of liberty. The educational services of the Education in Contexts of Deprivation of Liberty modality are those of the level that corresponds to the target population and may be implemented through flexible pedagogical strategies that guarantee equality in the quality of the results. The certifications will correspond to the models of common education.26 But prior to the above, already in 1986, the Federal Penitentiary Service and the University of Buenos Aires signed an agreement through which the UBA XXII Program was created, to provide university education in prisons. Its nucleus works in the Devoto University Center (CUD), an annex of the UBA in the Devoto prison. But it also has a presence in the federal prisons of Ezeiza and Marcos Paz. Within the framework of the program, detainees can study the careers of Public Accountant, Law, Arts, Psychology, Sociology, among others. There are also workshops and complementary educational activities. Other public universities provide education in prisons but with much more limits and less possibility of demand. Most of the modality is semi face-to-face or directly free, such as the UBA XXII Program.

26

Art 137, law 26,602 “National Education Law”.

Prisons in Argentina and Challenges of Human Rights

125

The National Education Law27 in its article 55 establishes that education in the context of confinement guarantees the right to education of all persons deprived of liberty, to promote their comprehensive training and full development. That is to say, that from the conjunction of the aforementioned article with article 1 of Law 24,660, education in confinement contexts has the purpose of promoting their integral formation and full development in order to achieve an adequate social reintegration. In 2011, by means of Law No. 26,695, article 140 of Law 24,660 was modified, establishing that the reduction of the periods required for advancement through the different phases and periods of the progressivity of the prison system will be reduced if the person successfully passes totally or partially their primary, secondary, tertiary, university, postgraduate studies or professional training paths or equivalent in accordance with the National Education Law. However, the courts have understood that the benefit for education does not only apply to primary, secondary, tertiary, university and/or postgraduate education, but also covers training courses that can be taught outside said educational levels. The new wording of article 140 of Law 24,660 stimulates educational activity above the rest. It is considered that these cannot be left aside and must continue to conform to the objectives that are related to issues of an individual nature designed for the convicted. Such programs, precisely, tend to provide them with the necessary elements for proper social reintegration that not only covers educational activity, but also other activities.28 In this way, education is distorted and its purpose is to advance in the progressivity regime and obtain in advance the benefits of temporary releases, assisted release or parole. In this sense, the amendment substantially alters the temporary requirements to go through phases or obtain the benefits of temporary exits, semi-release, conditional release and assisted release. Regarding the relevance of obtaining each particular institute, in addition to the time requirement, the other legally stipulated requirements must also be present when granting each benefit. According to the SNEEP, in 2020 at the national level, 58% did not participate in educational programs, 16% did so in primary education, 15% in secondary education, 4% in tertiary and university education, and 7% non-formal education courses. In addition, the central problem the legislator should have corrected is the contradiction between the Federal Education Law and its provincial application. It happens that when an inmate is transferred for competence or security issues within the federal system (which administers prisons in many provinces) or between different provinces, from one prison to another, the continuity of studies is usually

27

Law 26,602. Federal Oral Criminal Court of Feria No. 1, - file No. CFP 1302/2012/TO1/34, corresponding to the convicted Amado BOUDOU, correlated to case No. 2504 “BOUDOU, Amado and others for bribery and others” (arts. 256 and 258 of the Penal Code and negotiations incompatible with public function (art. 265 CP)” Case CFP 1302/2012/TO1/34).

28

126 Table 1 Education level

E. Blanco and M. Arrigo Education level never attended an educational establishment incomplete primary complete primary incomplete secondary complete secondary incomplete tertiary/university tertiary/university complete or more do not know/did not answer Total

% 4 18.1 19.7 32.9 11.3 11.1 1.9 1.0 100.0

Source: own elaboration

affected, basically due to procedures jurisdictional transfer administrative procedures. It is unquestionable that education is a fundamental factor when it comes to avoiding recidivism, and promoting the desistance of crime However, in our opinion, education must also be accompanied by the specificity required for its application in confinement contexts. Nothing prevents the existence of courses that tend to achieve the reduction of risk factors and accompany the withdrawal process. Another example are those trainings, workshops that could be offered in cases of gender violence or other specific crimes. Finally, we believe that we must have an optimistic outlook when speaking of desistance processes through art and culture.

4 Employment and Educational Expectations In 2018, the Criminology Institute of the Federal Penitentiary Service worked on a survey of job and educational expectations in the prison population. For this, three prisons were taken as example: the Federal Penitentiary Complex I (CPF I), the Federal Complex of the City of Buenos Aires (CPFCABA) and the Federal Complex for Young Adults (CPFJA). The witness population of 802 people deprived of their liberty, made up of 91% men and 9% women, 74.7% between 18 and 40 years old. The collected empirical evidence yielded the following results regarding education (Table 1), job expectations (jobs that respondents consider relevant at the time of their return to free society, Table 2), possibilities of obtaining a job in free society (Table 3), means by which a job would be obtained in the free society (Table 4). From the data transcribed, we can see that in the sphere of the prisons that are in orbit of the federal system of Argentina, both work and education have been distorted. Work has become a means of income, and education a possibility to overcome stages of prison treatment. It goes without saying that this has denatured the already beaten reintegration ideal or what little remains of it. We believe that the most appropriate vision to overcome these difficulties is to adopt policies that, following the most recent criminological perspectives, fit into the

Prisons in Argentina and Challenges of Human Rights Table 2 Job expectations

Job expectations trades (electrician/plumber/gas/painter) carpentry/blacksmith kitchen/bakery any work/indistint mechanic/automotive construction (bricklayer/welder/etc) maintenance tailoring/sewing informatics/computing none Others do not know/did not answer Others Total

127 % 13.8 8.2 7.1 6.7 6.1 4.2 4.2 2.1 2.0 3.1 12.5 29.8 12.5 100

Source: own elaboration Table 3 Influence of prison on the possibilities of obtaining a job in free society

Prison & jobs helped to obtain a job adversely affected to get a job did not affect the chances of getting a job outside do not know/did not answer Total

% 21.3 40.3 25.4 13.0 100

Source: own elaboration Table 4 Means by which a job would be obtained in the free society Jobs talking with friends/family members/acquaintances looking for offers on the street/daily/internet talking with people from the social rehabilitation directorate through contacts made inside prison Other do not know/did not answer Total

% 65.5 11.5 6.4 1.9 2.9 11.8 100

Source: own elaboration

pillars of education and work with the generation of habits and responsibilities. It is about ensuring that people can have effective tools after release to lead a life away from crime; this is not achieved by generating a diversity of benefits equaling the conditions of the free society, but rather achieved by attending to the particularities of life in prison and the purpose that the sentence should have and consequently its execution. In the midst of the exposed tension are the people deprived of their liberty, for whom no one intercedes effectively. Thus, all those involved in prison execution, far

128

E. Blanco and M. Arrigo

from favoring persons deprived of liberty, do the opposite: under the excuse of stigmatization, the application of instruments and programs linked to risk and desistance models is omitted, as is the generation of adequate financial education, and professional training is far from being linked to criminological issues. These and many other examples are what lead us to take a simple look at how does the penitentiary system in Argentina “reintegrate” inmates? Or: does it reintegrate inmates?

5 Final Considerations As we have stated, there is currently a new proposal to consider the prison. In it, what is intended is, fundamentally, to guarantee access to fundamental rights by people deprived of their liberty and, through this process of social insertion, address the different needs of inmates, in the order dictated by the factors most associated with criminal recidivism; one of which, of course, is the ability to find work and to be able to self-sustain their main material needs. Also, this new consideration about prison work and education in prisons entails a series of specific characteristics and conditions that must be taken into account; namely: 1. It is essential that, in addition to improving the educational offer, more efficient monitoring systems and information on progress and academic performance are established, in order to draw up real incentives to study. 2. Greater security should be granted to the prison administration for technological teaching systems and progress in the curricula and offers of both formal and informal studies. 3. It is fundamental when deciding the preventive imprisonment of a person, to consider, among others, the fact that he may be working or studying. This, in attention to the dimension of need and risk that we express, may serve to determine sentences in the community and avoid confinement and all the problems that it entails. 4. Although the workshops inside the prison should not be conceived in terms of economic gain, since the remuneration received by workers in most prison systems comes from budget allocations, efficiency and results should be considered in terms of reducing recidivism or a common and solidary fund that effectively serves to deal with the first months of freedom, given that the evidence has shown that they are the most difficult ones. 5. Although a legislative reform is necessary, the pre-existing administrative relationship must not be forgotten. Therefore, taking into account this specialty, the best possibilities of the administration and the administered subject must be taken into account; consider the different modalities and access to the institutes that the right to social security requires. Nor, in our opinion, should the rules of common labor legislation be applied directly, without paying attention to the

Prisons in Argentina and Challenges of Human Rights

6.

7.

8. 9.

10.

129

particularities of work in prisons. But we must clarify that the mere definition of the legal nature of the existing employment relationship does not solve the problems of standards and institutes in a universal way. Promoting the logic of cooperatives, self-managed workshops, guardianship systems and increasing the offer of job training should be considered as options, in order to provide people deprived of their liberty not only with greater capacities to function in the labor market, but also to guarantee offer and/or continuity of work tasks when regaining freedom. Complete legal instruments must be generated that reflect the public decision of what is to be done in terms of prison treatment and rehabilitation. We understand that legal gaps or simple referrals lead to different legal interpretations that are often colored by political or sectoral conceptions and not by criteria of science or prison space management. Scientific, statistical and field studies must be carried out to determine the efficiency of work programs with respect to recidivism rates. Awareness campaigns and incentive policies should be carried out so that society knows about work programs in prisons and their consequent effect on people. It is vital for the success of such programs, in terms of reinsertion and recidivism reduction, that society knows how and why tax money is being invested in such policies. Consideration should be given to the need to displace certain current demands regarding work in prison (insertion within the logic of the employment contract, private companies, etc.) towards alternative prison and post-penitentiary systems that are in charge of a specific public service, such as the National Directorate for Social Readaptation—in the case of Argentina-, and that, in turn, these institutions coordinate their actions with other state agencies, NGOs and civil associations. This is strictly correlated with the idea that, if indeed the crime problem is everyone’s problem, then all efforts should be directed at generating a single criminal policy where all state agencies, non-governmental, civil associations, control bodies, academics and society participate in the pertinent decisions.

References Blanco E (2018) Análisis legislativo del trabajo en cárceles. Revista Criminológica 1:112–150 Espinoza O, Martínez F, Viano C, Villagra C (2008) Volver a Confiar. Caminos para la Integración Post Carcelaria. Centro de Estudios en Seguridad Ciudadana, Universidad de Chile. http://www. cesc.uchile.cl/serie_estudios_20.htm

130

E. Blanco and M. Arrigo

Rosen H (2015) What works in reentry clearinghouse: employment. The Council of State Governments, Justice Center, National Reentry Resource Center. Available http://whatworks. csgjusticecenter.org/focus_areas/employment-topic and https://csgjusticecenter.org/2015/03/2 6/what-works-in-reentry-clearinghouse-update-new-content-on-the-effectiveness-of-employ ment-and-education-programs/ Villagra C (2008) Hacia una Política Post Penitenciaria en Chile. Editorial Ril, Santiago Villagra C, Aguilar L, Landabur R, Sánchez M (2010) Tratando de Dejar el Delito: Aprendizajes de un Programa Piloto de Reinserción Post Carcelaria en Chile. Rev Electrón Deb Peniten 12:3–19. Available https://www.cesc.uchile.cl/publicaciones/debates_penitenciarios_12.pdf

Jurisprudence Federal Oral Criminal Court of Feria No. 1, - file No. CFP 1302/2012/TO1/34, corresponding to the convicted Amado BOUDOU, correlated to case No. 2504 “BOUDOU, Amado and others for bribery and others” (arts. 256 and 258 of the Penal Code and negotiations incompatible with public function (art. 265 CP)” Case CFP 1302/2012/TO1/34) Supreme Court, in case 1318/13 Kepych Yúry Tibériyevich s/appeal of cassation. Available https:// www.cij.gov.ar/nota-14499-La-C-mara-Federal-de-Casaci-n-Penal-hizo-lugar-a-un-h-beas-corpus-colectivo-en-un-caso-por-el-trabajo-de-los-presos.html

Argentine Legal Framework Law 20,744 Labor Contract Law 24,372 Creation of Entity for Technical and Financial Cooperation Law 24,660 Execution of prison sentence Law 26,602 National Education Law

Emiliano Blanco , Lawyer specializing in Criminal Law, is a Board Member of the International Corrections and Prison Association, ICPA. He was National Director of the Federal Prison Service of Argentina, and Director of the Institute of Criminology. He previously worked as Head of the Advisory Team to the SPF’s National Director and the Undersecretary of Prison Management. He also provided services as a legal advisor to the Ministry of Justice and Human Rights on different programmes. Additionally, international agencies have hired his services as an expert consultant to give advice on treatment and technical assistance in matters relating to reducing recidivism, protecting the public, and managing prison services. He is a Professor of and researcher in applied criminology and comparative prison law, and he was also a private lawyer. Mariano Arrigo , lawyer graduated from the Law School of the University of Buenos Aires. He held the position of teaching assistant in the subjects of Public International Law and Human Rights. He joined the Federal Prison Service of Argentina as a legal advisor in 2013. Later became a head of the Comparative Studies Division of the Institute of Criminology at the Federal Prison Service. He has written several articles on Criminology, all of them related to comparative systems and applied criminology and has been professor in Penology, Prevention of Prison Risks and Genealogy of the prison and criminological ideas at University of Lomas de Zamora.

Penitentiary System and Community Justice in Mexico Lukasz Czarnecki

Abstract The chapter discusses the challenges of community justice system in Mexico, a country which shows possible alternatives for a bottom-up change in the area of judicial reform that has impact on penitentiary system. The Community Court (Juzgado Cívico) as a new type of court was established in 2016. The new model responds to the presence of crime that has been in Mexico for at least two decades, as well as the overload of the traditional system, which has resulted in an overburdened prison system. What are the challenges and limitations of justice policy in the context of Community Courts? The conclusion is that the positive effects of the functioning of the new type of court depend on many factors and not only on the implemented law, but especially on the knowledge and recognition of specific challenges of the region. Mexico is a socially diverse country, and the success of the Community Court will depend on social and economic aspects that face each Mexican state.

1 Introduction The building of the General Archive of Mexico is located inside a former prison which was the first most important federal prison—Palacio Lecumberri. The Mexican prison system has long history dating back the colonial times of virreinato (Garcia Ramirez 1999). Recent years brought a reform and the new type of court was established: the Community Court (Juzgado Cívico) in 2016. The new model responds to the presence of crime that has been in Mexico for at least two decades, as well as the overload of the traditional system, which has resulted in an overburdened prison system. What are the challenges and limitations of justice policy in the context of Community Courts?

L. Czarnecki (✉) University of the National Education Commission, Kraków, Poland e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Czarnecki (ed.), Human Rights Protection and Ius Puniendi, European Union and its Neighbours in a Globalized World 11, https://doi.org/10.1007/978-3-031-41253-0_9

131

132

L. Czarnecki

2,24,000 2,22,018 2,22,000 2,20,114

2,22,600 2,22,959

2,20,647 2,20,393 2,20,866

2,19,117

2,20,000 2,17,969 2,18,000 2,16,134 2,16,000 2,14,000 2,12,000 I

II

III

IV

V

VI

VII

VIII

IX

X

Fig. 1 Prisons number in Mexico, January–October 2021. Source: own elaboration based on information from Cuaderno Mensual de Información Estadística Penitenciaria Nacional, https:// www.gob.mx/prevencionyreadaptacion/documentos/cuaderno-mensual-de-informacionestadistica-penitenciaria-nacional

2 How Many Prisoners Incarcerated? According to Garcia Ramirez (1999), the First National Penitentiary Census, carried out in 1976, revealed that there were 42,943 inmates in 399 institutions for men and women, federal and common prisoners. In June 1991, the prison population was 93,524 individuals. In March 1996 it had risen to 98,375,107. Just over a year later, in July 1997, the figure was 106,682. According to Fig. 1, the number of prisons grew up during the first ten months of 2021. This is rather contradictory taking into account the federal policy implemented since 2018, when the administration has been changed. AMLO won election under the slogan “peace and love” policy (“AMLOve”), however the data show the prison system is getting more overcrowded. Clearly, it is the pandemic period that diminish economic performance of the society, putting great amount of population on the edge of existence, modus operandi criminal activities. According to the Commission of Human Rights (CNDH 2020: 394) there is a “highly presence of violence inside the prisons”. However, it is not a new phenomenon, but a global problem, which—in the case of Mexico—weakens, affects and compromises even more the organizational base of the national penitentiary system. According to the Article 18 of the Mexican Constitution the respect and guarantee of human rights of persons deprived of liberty should be observed. Prison population during the last two decades had its peak in 2013, the final year of Felipe Calderon’s Administration (Fig. 2). Pre trail imprisonment is at its highest peak in Mexico (Fig. 3). Based on official information for 2019, among persons deprived from liberty in federal prisons by legal status and sex most are men, however the condition of women is worse as more of 50% of them are without sentence (Table 1). Among Mexican states, it is the Ststr of Mexico (Estado de México) that has most prisoners (Table 2).

Penitentiary System and Community Justice in Mexico

133

3,00,000 2,50,000 2,00,000

1,50,000

2,55,638 2,39,089 2,17,868 2,14,231 2,19,027 1,97,988

2,19,754 2,10,140 1,93,889 1,72,888 1,54,765

1,00,000 50,000 0 1995

2000

2005

2010

2015

2020

2025

Fig. 2 Prison population in Mexico, 2000–2020. Source: own elaboration based on information from CNSPF (2020)

43.50%

1,20,000 1,00,000

43.00% 42.90% 42.50%

42.70%

80,000

42.00% 60,000

41.70%

41.50%

41.20%

40,000

41.50% 41.00%

20,000

40.50%

0

40.00% 2000

2005

2010

2015

2021

Number in pre-trial/remand imprisonment Percentage of total prison population Fig. 3 Pre-trial imprisonment, 2000–2021, Mexico. Source: own elaboration based on information from CNSPF (2020)

Table 1 Persons deprived from liberty in federal prisons by legal status and sex, 2019

Legal status Total Without sentence With sentence Non-final judgment Definitive sentence

Total 17,271 6946 10,325 4641 5684

Men 16,438 6465 9973 4532 5441

Women 833 481 352 109 243

Source: own elaboration based on information from CNSPF (2020)

134

L. Czarnecki

Table 2 Persons admitted to prisons in Mexico, 2020 Prisons Federal State Mexico Federal prisons Aguascalientes Baja California Baja California Sur Campeche Coahuila de Zaragoza Colima Chiapas Chihuahua Ciudad de México Durango Guanajuato Guerrero Hidalgo Jalisco México Michoacán de Ocampo Morelos Nayarit Nuevo León Oaxaca Pu Querétaro Quintana Roo San Luis Potosí Sinaloa Sonora Tabasco Tamaulipas Tlaxcala Veracruz Yucatán Zacatecas

Total 108,655 5956 2443 10,828 501 473 5355 1366 2184 7213 8243 2315 6183 1088 1642 4056 11,189 2184 1584 2259 5475 949 2973 2806 1423 1385 1548 6553 1816 811 662 2445 747 2000

No federal crimes Men Women 86,187 6924 768 26 2053 217 6462 388 437 17 389 55 5027 319 960 46 1941 145 5777 506 7460 637 2071 242 5474 311 705 44 1314 148 3336 267 10,125 831 1614 114 1361 180 2063 178 4823 421 855 71 2324 267 2394 225 1107 120 1217 91 1227 73 5876 423 1706 100 626 51 457 43 2142 162 627 70 1469 136

Source: own elaboration based on information from CNSPF (2020)

Federal crimes Men Women 13,333 1094 5068 94 134 37 3149 290 42 5 25 4 5 4 305 35 86 12 271 166 117 29 2 0 330 55 316 20 165 10 430 23 208 25 419 37 34 3 14 3 206 24 8 15 334 29 171 16 171 25 69 5 224 24 197 53 8 2 127 7 155 7 122 14 38 9 383 12

Penitentiary System and Community Justice in Mexico

135

3 Community Courts in Mexico Community courts (in Mexican Spanish: Juzgados Cívicos) might create an alternative for the growing number of prisoners in last years in Mexico—the issue analysed in the above section. The Juzgado Cívico works through a public hearing scheme and reparation agreements that could become a community work in the neighbourhood. The National Council of Public Security approved the plan to prepare the Model of Civil Justice, Good Government and Legality Culture for Mexican municipalities, referred to as the Homologated Model of Civil Justice, MHJC on August 30, 2016. In the case of the implementation of Mexican community courts, a review of justice models was carried out on the example of the following institutions: Red Hook Community Justice Center based in New York, Midtown Community Court based in New York, the National Program of Justice and Coexistence Centers of Córdoba Province in Argentina. The first community courts were established in the United States in 1993—Midtown Community Court.1 By mid-2010, approximately 35 courts had been established. Outside the United States, civil courts have developed in Australia, Canada, England, Singapore, and South Africa.2 The conceptual model of civil justice courts is robust and aims to ensure greater transparency, control, legality and some kind of fairness in the trial at municipal level. The United States Agency for International Development (USAID) has played a large role in promoting civil courts in Mexico.3 The MHJC has five distinctive features: (1) a systemic vision that embraces the Community Court; (2) incorporation of public hearings; (3) on-the-spot police operations with a proximity approach; (4) the inclusion of measures to improve the daily coexistence to draw attention to the underlying causes of the conflict behaviour of the perpetrators; and (5) implementation of MASC.4 Community courts are part of the new system of participatory democracy and civic culture, which is to promote a culture of peaceful coexistence of citizens. Mexico City was the first to pass the Civic Culture Act in 2019; in art. 1 was indicated the following goals: “To promote the culture of legality, which strengthens the harmonious coexistence, dissemination of the city’s regulatory order, as well as knowledge about the rights and obligations of citizens and officials”.5 Promoting the universality of community courts has the following objectives: (a) to increase trust in citizens’ courts by their users, and (b) the transparency of the

1

Kelli and Kralstein (2011). What is a Community Court? How the Model is Being Adapted Across the United States? https:// www.courtinnovation.org/sites/default/files/documents/What%20is%20a%20Community%20 Court.pdf s. 3 [10.12.2021]. Wolf (1999, 2010). 3 USAID (2018a, b, c, d). 4 SSPC (2020), p. 4. https://www.gob.mx/cms/uploads/attachment/file/607003/2Modelo_de_ Justicia_Civica2020_180121.pdf 5 Art. (1) d: Ley de cultura cívica de la Ciudad de México, DOF 7.06.2019. 2

136

L. Czarnecki

administration of civil justice. In turn, the inclusion of public hearings allows the pursuit of the two objectives of civil justice, namely: to provide solutions in a transparent and effective manner to social conflict; and improve the perception of public order and security.

3.1

Principles of Implementing Community Courts

These principles include: orality, universality, continuity, impartiality and immediacy. Orality consists in the fact that the public hearing will be held orally, both with regard to the allegations and arguments of the parties and the perpetrator’s testimony, the receipt of the evidence and, in general, any interventions by the persons participating in it. During the session, the resolutions will be dictated by the court and will be understood as delivered from the moment of their announcement. The principle of universality states that the public has the right to access the trial, observe the course of hearings and act as a civil judge. Openness at the hearing refers to the perception and receipt of evidence, its assessment and intervention by procedural entities with the possibility of physical assistance not only from the parties, but also from the public in general. According to the principle of continuity, the aim is to keep the duration of the trial as short as possible. This means that it must be carried out as soon as possible after the detainee arrives in custody and a decision must be issued as soon as possible. The principle of impartiality states that the judge has a duty to direct and adjudicate a hearing without favoring either party. Immediacy means that a judge of the community court ( juez cívico) is always present at the hearings and a representative cannot appear in his place. The judge must be directly related to the acting parties in the trial. The meaning of this principle is that the citizen judge will have immediate knowledge of the evidence so that the parties have personal access to the authority that will decide the case. Public hearings fully comply with the principle of immediacy, as a citizen judge has to hear the parties’ objections, witness the evidence at the hearing, and decide to resolve the incident.6

3.2

Alternative Methods (MASC)

Agreements reached through the Alternative Mechanism Process are approved by the community judge, regardless of how they were achieved. It is about the very result of resolving their conflict. The parties to the conflict will have at their disposal the Civic Center of the Alternative Dispute Resolution Mechanism (MASC). The

6

SSPC (2020), . . .op.cit., p. 50.

Penitentiary System and Community Justice in Mexico

137

police officer or community court will decide to refer the parties to the conflict to the MASC. The institution responsible for alternative dispute resolution mechanisms will be defined depending on the specificity and capabilities of each municipality. Two alternatives have been created: (1) MASC as part of the civil court; municipalities with sufficient resources (staff and infrastructure) will be able to provide the MASC as part of civic judicial services through one or more civic mediators; (2) a separate Civic Center for Alternative Mechanisms; municipalities that have a Civic Center for Alternative Mechanisms can agree with the Center to take advantage of its infrastructure and staff or be part of a court structure appropriate to each municipality. It is generally recommended that alternative mechanisms be provided in a geographically similar space to civil courts. Contrary to the Administrative Court, which devotes most of its institutional and operational efforts to managing the consequences of a conflict (after its outbreak), the community court tries to focus its resources on investigating and resolving the causes of the conflict, which will reduce the likelihood of this behavior repeating itself.

3.3

New Model of the Police

Administrative offenses are at the heart of the implementation of the new community justice system. The special role of the police is underlined. Five homologated categories of administrative offenses are proposed: (a) (b) (c) (d) (e)

Contrary to public order or collective good; Against health or the environment; Against property; Against people and their safety; and Car infractions.

Traffic offenses can now be considered by community judges, if the commune does not consider treating the same offense before a specialized body for minor road traffic offenses. The purpose of these activities is to ensure that the contracts that come from the MASC are respected by identifying the tangible consequences of non-compliance. In the event that the police arrive at the scene of a conflict between two or more citizens, they must dialogue with the parties to de-escalate the conflict at the scene. The police listens to the parties, seeks to understand the conflict and facilitate dialogue to reduce its escalation, uses one or more negotiation techniques if necessary, invites them to participate in the MASC when the situation allows or refers the parties or potential perpetrator before a civil court. For this participation to be successful, the police must:

138

L. Czarnecki

(a) have knowledge of the goals and operation of the administration of justice, (b) receive appropriate training to acquire skills that will allow you to defuse conflicts on the ground through negotiation skills, (c) have protocols specifying the conditions for its implementation, (d) have tools that will lead the conflicting parties to the appropriate instance responsible for the MASC, (e) apply to a community court; municipalities must use their existing social structure to promote a model of civil justice. The police on the spot are proactive in the face of conflict between people, when it is not yet a crime; on the basis that whoever listens to the parties understands the conflict and is able to defuse it. Uses a mediation tool to resolve a conflict or invites parties to go to the MASC Mediation Center. Measures to improve day-to-day coexistence are part of the sanctions provided by the MHJC and are aimed at criminals with the help of strategic institutions to address the causes of their behavior. Police officers can detect, refer cases and participate in the causes of conflicts. For those conflicts where it is not possible for police officers to end or apply mediation on the spot, the parties go to a Mediation Center where certified MASC experts will help reach an agreement. Police gathers information on the types of public safety problems that occur in the community; in addition, they analyze the risk profiles of people involved in the conflict and the characteristics of the mode, time and place where the offense occurs. Hearings that are held before a civil judge to establish the existence of an administrative offense and impose a sanction are public. The efficiency of a citizen judge is constantly under public scrutiny, so it is important to adhere to guidelines regarding the timing of the trial, the administration of hearings and the issuing of resolutions.

3.4

Nuevo León and Michoacán

Two models of community courts were tested, one in the city of Escobedo, in the state of Nuevo León, and the other one in the city of Morelia, the capital of the state of Michoacán.7 The social structure of Morelia and Escobedo is very diverse, as you can observe on the Map 1. The occurrence of a misdemeanor is very dependent on the social context and family structure. In the case of Escobedo, it is a commune in the north of Nuevo Leon state where labor migrants come. Nuevo Leon is a border state with the state of Texas in the United States. Thus, the chain of infringement transmission can be broken through generations. In the municipality of Escobedo, located on the 7

Morelia was less successful. Besides, the state of Querétaro, some municipalities in the state of Jalisco and other isolated examples have had positive results.

Penitentiary System and Community Justice in Mexico

139

Map 1 Morelia and Escobedo, Mexico. Source: own elaboration

border of the state capital of Monterrey, there is a Secretariat for Civil Security and Civil Justice (Secretaría de Seguridad Ciudadana y Justicia Cívica) at municipal level, which aims to: crime prevention and prosecution, so that citizens can develop family and recreational social activities in peace and safety”. Meanwhile, Juzgado Cívico was appointed in Morelia in 2018. The state of Michoacán, located in the Midwest, has one of the highest rates of violence. The location of the court in the state capital changes the social perspective diametrically compared to the Escobedo municipality. Promoting a culture of legality by resolving everyday conflicts is largely heterogeneous, so it is argued that the Morelia model is less effective than the Escobedo court.

4 Conclusion The Community Courts (Juzgados Cívicos) in Mexico operate under the public hearing scheme, in which the judge will hear the versions of the facts of the person involved in the commission of an administrative offense and the first respondent (element of the Municipal Public Security Secretariat), with which may assess the evidence for the imposition of the corresponding sanction.

140

L. Czarnecki

These courts appeared in time of the great violence, which reproduce itself in different levels. For example, according to the analysis carried out by non-government organizations Intersect and Animal Político, Mexico emerges as a country with constant violation of liberty rights, including prisoners.8 In addition, there is a problem of showing complete and up-to-date information on the conditions in which prisoners live in overcrowded prisons, which is a characteristic feature of other countries struggling with the problem of high crime.9 In 2015, there were 190,537 incarcelated in state penitentiary centers for common law crimes.10 In addition, the official numbers shows the growth of persons in prison during the last months. In this sense, the implementation of the community justice system through the Juzgado Cívico is of particular importance. Its aim is to ease the burden on the traditional justice system. The new model of civil justice involves the implementation of the National Police Model in Mexico. It allows you to deal quickly and efficiently with conflicts arising from everyday intercourse, prevents their escalation and facilitates their peaceful resolution. This model was introduced in 2016. Community justice is used to prevent crime as it prevents conflicts leading to aggressive or criminal behavior, promoting a culture of peace at the local level. It functions at the municipal level. Administrative offenses and anti-social behavior will be sanctioned in favor of the community so that the offender will acknowledge the damage caused and remedy it. Moreover, it enables observation and identification of the endangered part of the population. The new model responds to the unprecedented presence of crime for at least a decade that is still present in Mexico. Crime and violence have always been an emerging task for Latin American and Caribbean countries, including Mexico. The existence of a criminal network, the development of prisons, police organizations and legal hierarchies show the true face of everyday justice in the country. In 2021, the Mexican Senate approved a draft decree that includes civil justice as a means of preventing and solving social problems, facilitating and improving social coexistence, and preventing the escalation of conflicts into criminal behavior or acts of violence.11 The Senate decided that civil justice is a way to prevent crime and should be widely implemented. Preventing conflicts from escalating to criminal behavior or acts of violence is one of the main goals of constitutional reform. The political system is a vessel coupled to the judiciary system. The example of Mexico’s Community Courts gives possible alternatives for the bottom-up change in the area of judicial reform. However, the Escobedo and Morelia courts show the possible problems regarding its successful implementation. The new type of court

8

See: CIDE (2021a, b, c). Taufik and Gearhart (2021). 10 INEGI (2015). 11 Senate, Incluye el Senado justicia cívica como medio para prevenir el delito, 11.03.2021; http:// comunicacion.senado.gob.mx/index.php/informacion/boletines/50489-incluye-el-senado-justiciacivica-como-medio-para-prevenir-el-delito.html [10.12.2021]. 9

Penitentiary System and Community Justice in Mexico

141

depends not only on the implemented law, but especially on heterogenous socioeconomic challenges that face each Mexican state.

References CIDE (2021a) Datos viejos, contradictorios, inexistentes: la opacidad que satura las prisiones en México. Intersecta and CIDE, Mexico CIDE (2021b) Sin datos, sin derechos. La falta de información sobre las personas privadas de la libertad en México durante la pandemia. Intersecta and CIDE, Mexico CIDE (2021c) La condena sin sentencia. El abuso de la prisión preventiva en México durante la pandemia. Intersecta and CIDE, Mexico. https://www.intersecta.org/pp-covid/ CNDH (2020) Diagnóstico Nacional de Supervisión Penitenciaria. CNDH, Mexico. https://www. cndh.org.mx/sites/default/files/documentos/2021-05/DNSP_2020.pdf CNSPF (2020) Censo Nacional de Sistema Penitenciario Federal. Mexico INEGI. [National Census of the Federal Penitentiary System] Garcia Ramirez S (1999) El sistema penitenciario. Siglos XIX y XX. Boletín Mexicano de Derecho Comparado [S.l.] INEGI (2015), Poblacin reclusa y adolescentes infractores, Mexico: National System of Statistical and Geographical Information. https://www.inegi.org.mx/temas/poblacion/#informacion_gen eral (30.08.2023) Kelli H, Kralstein D (2011) Community courts: a review of the research literature. Center for Court Innovation, Washington. https://www.courtinnovation.org/sites/default/files/documents/Com munity%20Courts%20Research%20Lit.pdf Ley de cultura cívica de la ciudad de México, DOF 7.06.2019, [stan z 10.12.2021]. https://paot.org. mx/centro/leyes/df/pdf/2019/LEY_CULTURA_CIVICA_CDMX_01_08_2019.pdf SSPC (2020) Modelo Homologado de Justicia Cívica Buen Gobierno y Cultura de la Legalidad para los municipios de México. Secretaria de Seguridad y Protección Ciudadana, México. https://www.gob.mx/cms/uploads/attachment/file/607003/2Modelo_de_Justicia_Civica2020_1 80121.pdf Taufik M, Gearhart MC (2021) “The law is the law”: the Malaysian police readiness for the implementation of restorative policing. International Journal of Law, Crime and Justice 67: 100505. https://doi.org/10.1016/j.ijlcj.2021.100505 USAID (2018a) Guía I Implementación de Justicia Cívica y Cultura de la Legalidad para los Municipios en México: Elaboración de Diagnóstico y Plan de Implementación. Gobierno de México USAID (2018b) Guía II Implementación de Justicia Cívica y Cultura de la Legalidad para los Municipios en México: Adecuación Normativa e Infraestructura Municipal. Gobierno de México. https://www.gob.mx/cms/uploads/attachment/file/542614/Gu_a_de_Implementaci_n_ Adecuaci_n_Normativa_logo_actualizado.pdf. Accessed 10 Dec 2021 USAID (2018c) Guía III Implementación de Justicia Cívica y Cultura de la Legalidad para los Municipios en México: Implementación de Audiencias Públicas. Gobierno de México. https:// www.gob.mx/cms/uploads/attachment/file/542615/Gu_a_de_Implementaci_n_de_ Audiencias_P_blicas_logo_actualizado.pdf USAID (2018d) Guía IV Implementación de Justicia Cívica y Cultura de la Legalidad para los Municipios en México: Medidas para Mejorar la Convivencia Cotidiana. Gobierno de México. https://www.gob.mx/cms/uploads/attachment/file/542616/Gu_a_de_Implementaci_n_para_ mejorar_la_convivencia_cotidiana_logo_actual....pdf

142

L. Czarnecki

Wolf RV (2010) Community Justice Around the Globe: An International Overview. Center for Court Innovation. https://www.courtinnovation.org/sites/default/files/CJ_InterOverview.pdf Wolf RV (1999) Defining the problem: using data to plan a community justice project. Center for Court Innovation. https://www.courtinnovation.org/sites/default/files/Defining%20the%20 Problem.pdf

Lukasz Czarnecki is an Associate Professor at the Institute of Law, Administration, and Economics, the University of the National Education Commission of Kraków. He holds a PhD in Sociology at the National Autonomous University of Mexico (2012), the University of Strasbourg (2015), and Juris Doctoris from the Jagiellonian University of Kraków (2019). His research interests include comparative and transformative constitutionalism in Latin America and the Caribbean, the rule of law and its relations with inequalities, exclusions, imprisonment, and subjective wellbeing, based on mixed-method research. He is a member of the board of the International Sociological Association RC06 Research on Families (2023–2027) and member of the Editorial Board of the Oñati Socio-Legal Series, a Journal of the Oñati International Institute for Sociology of Law.

Conclusions Lukasz Czarnecki

Abstract The research on ius puniendi in two regions was based on a multitude of methodological perspectives. This volume is multidisciplinary which makes a unique comparison. Throughout the book we focused firstly on challenges in Central East Europe, then on Latin America, starting with the case of Poland, where Professor Zbigniew Hołda yet observed a violation of human rights more than a decade ago. In Central East Europe and Latin America, there are more similarities regarding past experience with autocratic regimes than in the Western world.

The research on ius puniendi in two regions was based on multitude of methodological perspectives. This volume is multidisciplinary what makes a unique comparison. Throughout the book we focused firstly on challenges in the Central East Europe, starting with case of Poland, where Prof. Zbigniew Hołda yet observed violation of human rights more than decade ago. In the chapter “Human Rights in the Context of Post-conviction Preventive Detention in Poland”, key issues regarding detention conditions and procedural rights of detainees in the National Centre for Prevention of Dissocial Behaviour in Gostynin were raised, identifying regulatory and enforcement gaps, and considering similar models implemented in Germany and the Netherlands. In addition, chapter “Execution of a Prison Sentence. International Standards: The Local Perspective” identified core problematic aspects of detention conditions in Polish prisons, revolving around overcrowding, ageing population, shortcomings in the practice of conditional release, and the impact of penal populism. Similar to Polish case, in Czech penitentiary system there is a contradiction between rehabilitative and retributive/repressive culture, which limits rehabilitative work with imprisoned persons, making them more dangerous after imprisonment, more prone to prisonisation, and more marginalised (chapter

L. Czarnecki (✉) University of the National Education Commission, Kraków, Poland e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 L. Czarnecki (ed.), Human Rights Protection and Ius Puniendi, European Union and its Neighbours in a Globalized World 11, https://doi.org/10.1007/978-3-031-41253-0_10

143

144

L. Czarnecki

“Rehabilitation vs. Retribution/Repression: An Introduction to Systemic Contradictions in the Czech Penitentiary System”). Next chapter focused on domestic, European, and international human rights principles in the North Macedonian criminal justice system for delinquent children, uncovering the disparity between the law in the books versus the law in action, and commenting on the enforcement gap facing the North Macedonian juvenile justice system (chapter “Restorative vs Punitive Approach. Eight Fundamental Principles of Juvenile Delinquency Prevention”). Latin American countries showed common challenges for ius puniendi. Chapter “Human Rights in Chilean Prisons: Advances, Setbacks and Challenges for Prison Reform” presented the evolution of Chilean prisons, outlining recent reforms and how they enhance the protection of fundamental rights, before moving on to consider some of the key challenges still facing the Chilean prison system, with a focus on conditions of detention, violence, overcrowding, persistent infrastructure issues, corruption, and women rights. Then, chapter “Crisis of the Penitentiary System in Peru in Light of the Fight Against Drugs” revolved around the pressure that the war on drugs applies to the Peruvian prison system, examining the effects of over-criminalisation and ‘tough on crime’ approaches on the domestic criminal justice and penal system. Chapter “Prisons in Argentina and Challenges of Human Rights” examined the Argentinian inmates’ rights to education and remunerated labour, considering ways to better regulate and enforce them, and commenting on the place of such rights within the purposes of punishment and the criminal justice system. Finally, chapter “Penitentiary System and Community Justice in Mexico” focused on judicial reform and the role of Community Courts on the Mexican criminal justice system, considering their role in promoting fairness, legitimacy, and accessibility to justice, while further highlighting the role of these courts in regards to crime prevention. The common themes emerging throughout the book this comparison showed that overcrowding in prisons appears as a common issue both in Central East Europe and Latin America. Additionally, we note that non-compliance of local/national authorities with international human rights norms is another common theme, manifesting across various jurisdictions, but also revealed via different legal and criminological methodologies. A third example of commonalities between the chapters would be the fact that various authors note the effect of the recent pandemic on the prison environment. Prison systems in both regions is facing largely common challenges, despite geographical, legal, or cultural variance. However, not only this. The book invites to deeper look in similarities as in the next section trust in police and legal system in both regions will be analysed.

Conclusions

145

Table 1 Trust in police in some European countries, percentage Trust in police No trust at all 1 2 3 4 5 6 7 8 9 Complete trust

Austria 1.8 1.3 3 4.8 4.4 12 11 16.4 22 12.9 9.9

Germany 1.8 1.2 2.9 5 4.8 12.4 9.9 17.1 22.6 12.6 9.2

Spain 6 2.3 4.5 5.5 5.2 11.8 8.9 14.8 17.1 10.1 13.4

Sweden 1.5 1.1 3 4 4.9 9.8 9.2 17.8 24.4 14.4 9.5

Poland 8.5 4.8 8.8 10.8 9.3 19.5 8.6 10.2 9.5 3.8 5.5

Czech Rep. 3.6 2 3.4 4.8 5.3 11.7 12.5 15.4 18.3 14.2 8.2

North Mac. 11.4 3.8 8 9.1 9.6 20.3 10.2 10.5 7.6 3.1 5.9

Source: own elaboration based on ESS ERIC (2022)

1 Why Is the Trust in Police and in Legal System Low? Social control takes place in various dimensions: “A cardinal principle for the understanding of police organization and activity is that the police are only one among many agencies of social control [. . .]. Police are relatively unimportant in the enforcement of law”.1 Central East Europe and Latin American and countries are similar regarding the trust in police and institutions of legal system. Central East European countries have a similar pattern regarding high percentage of persons with no trust in police, based on last available data from the European Social Survey (ESS) 2021,2 f.e. for Poland 8.5%, for Czech Republic 3.6% and for North Macedonia 11.4% (Table 1). According to the ESS survey Western countries score higher percentage of complete trust in the police. Not trust at all in police expressed 11.4% respondents, in Poland 8.5% and in Czech Republic 3.6%. As far as trust in legal system is concerned, Poland has the highest score, i.e., 19.8% who answered no trust at all, then North Macedonia 11.4% and Czech Republic 6.8% (Table 2). Overall trust in legal system in the Latin American countries is relatively low (Fig. 1). From the cross-border perspective adopted one can observed that Central East Europe and Latin America share the same experiences as being the countries in which they should implement and adjust its law according to English-speaking

1

Banton (1964), p. 127. Updated dataset therefore includes 19 countries who administered the survey in line with previous rounds: using only in-person interviews. Data collected in this way is available from 19 countries: Bulgaria, Croatia, Czechia, Estonia, Finland, France, Greece, Hungary, Iceland, Italy, Lithuania, Montenegro, Netherlands, North Macedonia, Norway, Portugal, Slovakia, Slovenia and Switzerland. Data from six countries—Austria, Germany, Poland, Serbia, Spain and Sweden—was collected through online and postal questionnaires using a ‘self-completion’ design. 2

146

L. Czarnecki

Table 2 Trust in legal system in some European countries, percentage Trust in legal system No trust at all 1 2 3 4 5 6 7 8 9 Complete trust

Austria 3.9 2.1 4.5 6.4 6 12.8 7.8 15.3 19.6 13.8 7.3

Germany 3.3 2.2 4.2 6.9 7.2 13.8 9.8 16 19.1 11 6

Spain 13.6 6.2 10 10.6 8.5 15.6 8.3 10.7 8.1 3.1 4.8

Sweden 3.7 2.7 6.4 8.5 6.8 14.2 11.4 15.2 18.3 8.5 4.8

Poland 19.8 10 13 14.5 9.2 16.3 5.5 5.1 3 1 1.4

Czech Rep. 6.8 4 6.3 7.4 7.9 14.3 11.3 13.6 14.4 9.3 4.2

North Mac. 26.8 8.6 12.4 10.9 9.5 15.8 5.5 4.3 2.9 1.2 1.8

Source: own elaboration based on ESS ERIC (2022)

Fig. 1 Trust in police in LAC countries, percentage. Source: own elaboration, (1-high, 4-small), 2020, LAC. Latinobarometro 2020. https://www.latinobarometro.org/latContents.jsp

jurisdictions of the West. One would say the framework comes from the West and what corresponds to the East is to implement it. All countries examined in the book are bound at the same two levels of human rights protection: the national, and the international one. Hence, each country examined has domestic human rights standards, and each country examined is influenced by UN standards as well. There is a third level—the regional one. In case of European framework, Council of Europe and European Union, we found more coherent development of prisoners’ rights than American framework based on

Conclusions

147

the American convention. Right to humane treatment and social readaptation of prisoners (Article 5), freedom from slavery (Article 6) and right to personal liberty (Article 7) are referred to incarcerated. In addition, Latin America is influenced by idea of individual reasonability.3 Moreover, The Nelson Mandela Rules and other non-mandatory, optional reference guidelines are implemented, but nothing really enforcing it. For example, ILANUD (Instituto Latinoamericano de las Naciones Unidas para la Prevención del Delito y el Tratamiento del Delincuente),4 one of the most renown platforms in Latin America, is more an academic think tank than institution to monitoring rules. So far European jurisdictions are different compared to Latin American counterparts. The effects of regional human rights organisations on national prisons and criminal justice systems in both regions seem to be different. In European Jurisdiction, Council of Europe and the EU developed more protective framework. Yet being part of regional framework does not guarantee human rights protection and vice versa. North Macedonia is not yet a member of the EU, but standards towards juvenile are met with difficulties (Elena Mujoska Trpevska & Gordana Lažetić in this volume). By contrast, Poland is a member of the EU and constant violations of human rights protection occur such as creating uundemocratic “LGBT-ideology free zones” in several municipalities and law undermining judges’ independence (HRW 2022). Hungary’s anti-LGBT law is the similar case. Although there are some improvements for prisoners, still we are far from good conditions for incarcerated (Ewa Dawidziuk in this volume). There is direct impact of penal populism. National policy yet has real impact on human rights protection and in Central East Europe right-wing in power (Poland, Hungary) shapes standards in human rights protection. Migration, illicit economies, difficult post pandemics economies are on the root of a very difficult situation in any Latin-American country. While each state tries to accomplish guidelines, principles and obligations, budgetary restrictions deny any possibility for improving life conditions in prisons. That is the reason why regional European obligations are easier to accomplish and monitor than Latin American ones. It is not a matter of the quality of the obligations, but about the feasibility of its accomplishment by every state.5

2 Confronting the Past? In Central East Europe and Latin America there are more similarities regarding past experience with autocratic regimes than in Western world. The past has so far impact in contemporary Chile and Pinochet’s legacy reflects daily reality. One of the most

3

Thank you, Guillermo E. Sanhueza, for this observation. http://www.ilanud.or.cr/. 5 Thank you, Ricardo Soberon, for this observation. 4

148

L. Czarnecki

enduring aspects of Pinochet’s legacy—the way free-market driven economy works in Chile and the privatization of social life (Guillermo E. Sanhueza in this volume). Regarding prison life, and despite human rights efforts and institutions, there is this authoritarian regime, prisons are led by uniformed, pseudo-military personnel. The same is related to Czech Republic’s prison system (Jiří Mertl in this volume). In México new administration has been illegally expelling thousands of asylum seekers to Guatemala without due process. It looks like similar policy of pushback of asylum seekers on the Polish-Belarussian border during last years of international migration crisis 2022–2023. Although the new justice system in Mexico (Lukasz Czarnecki in this volume) might be a solution for overcrowded prisons, there are violation of human rights of incarcerated. Similar in case of Argentine. Longstanding human rights problems include police abuse, poor prison conditions, and endemic violence against women. Last but not least, this volume opens dialog with non-western countries, its conditions and challenges. There are potential future areas of research such as comparative regional framework and comparative Global North and Global South experiences, among others. Moreover, the comparative approach between CentralEast Europe and Latin America would show that political division on left-wing governments in Latin America and right-wing in Central East Europe is not such important, but experience of a division centre—periphery relations what should be on agenda of future topic.

References Banton M (1964) Law enforcement and social control. In: Aubert V (ed) Sociology of law, p 127 ESS ERIC (2022) European social survey European research infrastructure. ESS10 data documentation. Sikt - Norwegian Agency for Shared Services in Education and Research. https://doi.org/ 10.21338/NSD-ESS10-2020 HRW Human Rights Watch (2022) World report 2022. https://www.hrw.org/world-report/2022 Latinobarometro (2020) Latinobarometro. Santiago de Chile, https://www.latinobarometro.org/ latContents.jsp

Lukasz Czarnecki is an Associate Professor at the Institute of Law, Administration, and Economics, the University of the National Education Commission of Kraków. He holds a PhD in Sociology at the National Autonomous University of Mexico (2012), the University of Strasbourg (2015), and Juris Doctoris from the Jagiellonian University of Kraków (2019). His research interests include comparative and transformative constitutionalism in Latin America and the Caribbean, the rule of law and its relations with inequalities, exclusions, imprisonment, and subjective wellbeing, based on mixed-method research. He is a member of the board of the International Sociological Association RC06 Research on Families (2023–2027) and member of the Editorial Board of the Oñati Socio-Legal Series, a Journal of the Oñati International Institute for Sociology of Law.