31 March 2022
by Ekaterina Trifonova, correspondent for Nezavisimaya gazeta
Prisoners will hope for the best where possible
Poor detention conditions in pre-trial detention centres and prison colonies are almost impossible to litigate. The domestic justice system requires the presentation of factual evidence for complaints of this nature, and the Supreme Court only recommends that these proceedings not be brought to the point of absurdity. That is why human rights activists do not believe in the triumph of the humanistic message supposedly set out by the Ministry of Justice in its draft of new internal rules of conduct (IRC). Following their publication, experts pointed out that any liberalisation is subject to the condition of ‘where possible’.
In the courts, prisoners are required to present irrefutable evidence of the suffering they experienced as well as its degree. Once this is done, the amount of compensation is determined at the discretion of the judges themselves. This is exactly what happened to one of the claimants in the Supreme Court, who was held in different pre-trial detention centres for more than two years and faced harassment and inadequate conditions at every turn. In his complaint, the claimant mentioned overcrowding in cells as well as his close proximity to smokers, rats and insects.
Justice, at all three levels of the courts, rejected these claims, considering that the prisoner ‘did not provide evidence of physical and emotional suffering being inflicted on him’. The Supreme Court, however, referred to this position as incorrect: detention should be carried out in accordance with the principles of legality, justice, humanism and the equality of everyone before the law. Monetary compensation is therefore due to ‘any actual or former prisoner who is held in inadequate conditions’. At the same time, the burden of proving emotional or even physical suffering for prisoners should not be excessive, but it should still exist. However, evidence that is easily accessible to prisoners should be accepted: for example, the testimony of cellmates or responses from supervisory authorities to complaints. And now the administrative defendant, in other words, the pre-trial detention centre or colony, ‘is obliged to refute the charges through documentary evidence’.
In order to reduce the number of complaints, the Ministry of Justice has just prepared new internal rules of conduct, which are designed to ‘relax the existing restrictions and requirements, significantly improve the living conditions for prisoners and ensure the observance of their rights and lawful interests’. The new rules contain innovations that human rights activists have long insisted on – for example, the obligation of prison officers to know and call convicts by their first name and patronymic. However, it is the growing list of permissible things that is most noticeable in the pre-trial detention centres, such as trimmers, thermal underwear, electric kettles and e-books. Officials promise to solve problems with the personal hygiene of prisoners: they will be able to shower more often and ‘holes in the floor’ will be replaced by state-of-the-art toilets. As for medical care, it will be possible to approach the institution’s administration with an application to purchase medicines outside the current strict list. A lot of additional paid services are being introduced, such as repair and tailoring of clothes and shoes, classes in gyms, and the copying of medical and judicial documents. Consultations with doctors from private clinics are also allowed at the prisoner’s expense. Also, as Nezavisimaya gazeta has already written (see the issue from 22/03/22), the procedure for conducting searches will also change – behind screens, for greater privacy. However, since ‘the officers of the penitentiary system conducting full searches are prohibited from using video recorders’, this will probably only lead to worse things – there will be fabrications and falsifications.
At the same time, the Ministry of Justice assures prisoners that they will have the right of access to legal information and the right to make a complaint using a computer terminal, plus, the usual televisions, fridges, and fans in cells, as you would expect. Of course, each of those points comes with the proviso “where possible”. The same is said, for instance, about increasing the time allowed for walks, or accommodating smokers and non-smokers separately. As the co-chair of Moscow Helsinki Group (MHG) Valery Borshchev told Nezavisimaya gazeta, such a disclaimer is rather perilous as it means that nothing will be done. Quite the opposite, everything will stay as it was. Either that, or any improvement made will be linked to corruption. “The bad habits that go with the profession and the repressive mindset of prison officers are such that they are unlikely to endeavour to comply with the new rules,” he believes. So, laundry services, hairdressing, and shoe repairs, “are more of an attempt to commercialise the prison system and squeeze money out of prisoners”, since “they do more to expand the service industry than they do to increase safeguards”. Borshchev poses the rhetorical question, What will happen to prison officers if they fail to comply with these new regulations? “The fact of the matter is, they won’t be held responsible in any way, and the courts will simply kick claimants to the curb by requiring incontrovertible evidence of suffering. What are you going to do? Bring one of the rats along to court so the judge doesn’t say that the prisoner was imagining it? Well, of course, they could always say that the rodent was picked up on the way there,” he said, answering his own question.
Borshchev says that at the local level, the judicial system works against detainees, and how many of them would be so principled as to take matters to the Supreme Court? Not many, clearly. Moreover, higher instance rulings are regarded with scepticism. For one, cellmates are unlikely to agree to give evidence against prison officers, and it likewise seems doubtful that you could get a response in court out of the official oversight bodies who, more often than not, are turning a blind eye to the terrible things going on. As Moscow Helsinki Group member Ilya Shablinsky explained to Nezavisimaga gazeta, Russian prisons today have the same basic problems that they did 50 years ago: cramped and poorly ventilated cells, very poor quality food, the most basic amenities, a lack of decent medical care, and absolutely no protection for convicts against their torturers. The new internal rules established by the Ministry of Justice is supposed to improve things but, in his opinion, it simply will not be followed, just like many of the current rules. “There is this convention where the prison management has total power over convicts, and witnesses and the courts are indifferent to what’s going on in prisons,” claimed Shablinsky. For example, medical workers on contract to the Federal Penitentiary Service are completely at the mercy of their superiors, and so overlook signs of torture and illness. That’s why, aside from the new rules, we still need new courts or, more accurately, a new attitude from courts when it comes to complaints from people who have been made to suffer in prisons.
At the same time, experts note that Finland’s law on detainees, for example, expressly states that living conditions in prison shall be akin to those prevailing in society. That is, the deprivation of freedom is the punishment, and in all other respects a prisoner retains all their constitutionally guaranteed rights. Human rights defenders therefore maintain that if the government were genuinely concerned, it would be sufficient to amend the law just the once with two such sentences, instead of re-writing thousands of pages of the rulebook and issuing endless judicial decisions which, as a rule, just end up being ignored.