Lighter Penalties for Tajik Youth Offenders

 New law makes it easier for courts to impose fines instead of custodial sentences, but young offenders are unlikely to be able to pay.
By Valentina Kasymbekova - Central Asia Human Rights Reporting Project
RCA Issue 627,
27 Aug 10

While moves to treat youth offenders in a less punitive manner have generally been welcomed in Tajikistan, some experts are warning that shifting the focus from detention to fines may not work in a country where few can afford to pay them.

The changes, passed by the two houses of parliament in June and July, significantly expand the scope for courts to replace jail terms with monetary penalties for non-violent crimes.

Applied to both adult and young offenders, fines are an option for criminal offences including theft and wilful or accidental damage to property, as long as there is no serious injury or other aggravating circumstance.

Juvenile offenders – defined as anyone over 16 when sentence is passed but under the age of 18 – can be sentenced to up to seven years for lesser crimes and up to ten for more serious offences. They are held in a light-security detention centre near the capital Dushanbe which is intended to serve a corrective as well as punitive function.

The legislative reform is designed to make Tajikistan’s justice system more humane, and also to reduce the burden on the prison system.

Legal experts have welcomed the change as a way of offering alternatives to placing juveniles in detention for relatively minor offences, given the damage a spell in prison can do to a young person’s behaviour.

But they also point to what they see as a major flaw in the new legislation – there is little chance of juvenile offenders in Central Asia’s poorest state finding the money to pay fines. If they do not pay, the court’s fall-back position will be to put them in a penal institution.

Under the old system, courts could impose various restrictions on individuals who failed to pay a fine, but could not imprison them, but now they can either try to make them pay it off from earned income or if that fails, order a custodial sentence.

To make matters worse, the maximum fine that can be imposed on a juvenile offender has been doubled under the new act. The highest admissible fine, calculated on an inflation-linked scale, has gone from around 800 US dollars to around 1,600 dollars.

Fines fall due 30 days after verdict is passed, and even when postponed must be paid within six months at the most.

“Those who can’t find the required sum, which is substantial by our standards, will go to prison in any case,” Bakhtiyor Nasrulloev, director of the NGO Human Rights, said.

Nasrulloev said the arrangements replacing prison with fines looked suspiciously like a new way for cash-strapped government to raise money.

“I don’t think the state has opted for this in order to make life easier for minors who violate the law. It’s probably the financial factor that was to the fore,” he said.

Lawyer Mahmud Salimov said that fines for juvenile crimes existed on the lawbooks before now, but were only applied when the offender could be shown to be earning money on their own. That is no longer the case.

The leader of Tajikistan’s Communist Party, Shodi Shabdolov, who sits in parliament, says the new system of penalties will place the least privileged children at a particular disadvantage.

“It will fall on the parents’ shoulders,” he said of the fines. “But what if the child is an orphan or his parents are poor?”

Gulchehra Rahmonova, also a lawyer, has handled many juvenile cases in her time at the Centre for Child Rights, and agrees that the parents of the typical offender will not be able to pay fines.

“Most of those who go to court are adolescents from single-parent families who commit theft or fraud out of need, to get funds for food or clothing,” she said. “As a rule their single mothers are unemployed and are eking out a miserable existence from begging or handouts from relatives. In these circumstances they categorically refuse to pay a fine, preferring to send the child to a corrective institution.”

Shirinbek Mirzoev, deputy head of the Tajik police force’s youth crime prevention unit, confirmed that most juvenile offences were committed by children living on the streets or from impoverished families.

One of the measures set out in the new legislation is that offenders who are part of the way through a custodial sentence can obtain early release on payment of a fine.

The head of Tajikistan’s juvenile correction facility, Alikhon Hamroev, fears that this will be counter-productive for young convicts.

“Getting out doesn’t solve offenders’ problems – these kids have grown up without proper parental care, they’re illiterate and have no vocational skills. We try to help them fully acknowledge the nature of their crimes and get them to realise they need to earn an honest living,” he said.

“But what if an adolescent obtains his freedom early in return for a fine – where will he get a job with the stigma of a conviction and no vocation? He’s likely to return to us after a while, or go on to an adult prison.”

Other experts would like to see more comprehensive reforms of the system for handling youth crime. When offenders are caught, they still go through the general courts, as there is no separate juvenile justice system.

A 2009 study by a group of experts working under the government committee for child protection concluded that many young offenders ended up behind bars for petty crimes simply because judges, prosecutors and others had no other legal options available to them.

The research, which was presented in February 2010, reinforced calls by the United Nations Committee on the Rights of the Child for Tajikistan to introduce a specialised juvenile justice system.

Child rights experts say incarceration at an early age makes it all the more likely a youth offender will grow up into an adult one.

Jalolov, head of the Centre for Child Rights, says his experience has shown him how important it is to pull juvenile delinquents back from the brink.

“I believe that children offending for the first time should not be punished. It’s possible and essential to work with them,” he said, saying a localised youth crime prevention project run by his centre produced a 27 per cent drop in crime, according to police figures.

“But this isn’t happening on a countrywide scale. So children are being deprived of opportunities to escape criminal environments,” he said.

Valentina Kasymbekova is an-IWPR trained journalist in Dushanbe