12 May 2022
by Ekaterina Trifonova, ‘Stamped “official use only,” Constitution and laws change: The Russian citizen has been transformed from a subject of the law to an object of law enforcement,’ Nezavisimaya gazeta, 12 May 2022
Soon detained citizens are going to be transported from police department to police department in vans with AC and toilets. This is not the first or the only promised improvement connected to the allegedly increasing humanization of the law enforcement and penitentiary system. In fact, little is changing, inasmuch as the departmental orders that regulate the application of the most liberal provisions are either being changed or replaced by convenient law enforcement rules. And more and more often these kinds of documents bear the DSP (“for official use only”) stamp. But if a citizen cannot find out what these documents say so that they can dispute them later, they are transformed from a subject of the law into its object.
Moscow ombudsman Tatyana Potyaeva reported on the new vans a few days ago in a speech before the Moscow City Duma. She emphasized that this way there would be all the “amenities for transporting people.” As human rights activists reminded Nezavisimaya gazeta, these changes are being made in connection with the Justice Ministry’s long-ago promises to humanize the state security system, in particular the remand centres and prison colonies. Their residents, for example, can look forward to new internal regulations that will mean noticeably quite a few indulgences and improvements in daily life, including refrigerators and televisions in cells and the possibility of taking more showers.
But all this, human rights activists insist, is merely the illusion of change because in fact they can be introduced and applied extremely selectively. Even now, as Nezavisimaya gazeta clarified, any humanization is being negated through departmental orders and other acts. A significant share of the Justice Ministry documents that prescribe in detail the requirements regarding prisoners have been categorized as official information for limited distribution, including the regulation on the use of physical force and special methods against prisoners, standards for transporting citizens, and conducting searches inside prisons. Human rights activists do not have access to these documents, so it’s problematic for them to assess the lawfulness of a given decision by law enforcement agencies in order to determine whether there’s been a violation.
For example, the personal examination of convicts is regulated by a 2015 Justice Ministry order stamped “DSP” — and to this day we don’t know what types of search this means, when they are performing what procedure, or whether there are any limits to the warders’ authorities. There have also been attempts to complain about an unpublished act regulating the conditions for transport under convoy, but this DSP document is inaccessible to the prisoners declaring that their rights have been violated, so the courts are evaluating only the formal observance of theoretical rules. As Valery Borshchev, cochair of the Moscow Helsinki Group (MHG) explained to Nezavisimaya gazeta, the procedure for “classifying” department documents is not regulated, and the situation over the mounting DSP-tyranny gets more difficult every year: “If in the 1990s there were very few concealed acts, then now they are multiplying geometrically.”
For example, 10 years ago, members of the Public Oversight Commission (ONK) could walk freely into the Lefortovo remand centre and even bring their mobile telephones, Borshchev reminded us. Now they are subjected to a thorough search and confiscation of devices. Although all this, he says, is an “absolutely illegal thing.” In fact, observers are not supposed to be inspected when entering prisons and remand centres, but this is mentioned only in a departmental order stamped DSP. As a result, employees calmly ignore the legal status of ONK members, and when challenged that here you have the document, they reply, You don’t have the right to cite a document to which you have no official access. “And if it varies in Moscow as to when there’s a search with bias and when they just let them in, then in other regions the situation with this is simply catastrophic,” Borshchev emphasized. Of course, the DSP regulation leads to human rights activists more and more often getting rejections like this: “The requested information is for official use only.” So that any improvements promised by the Justice Ministry, in his opinion, will continue to be negated by internal instructions. Or applied selectively, to punish “uncooperative” prisoners. “The previous FSIN [Federal Penitentiary Service] leadership agreed to our claims that here and there they’d gone too far with ‘secret’ documents,” but today this is a totally closed topic. And the Justice Ministry is refusing to say how many regulations are being categorized right now as information for limited distribution. Basically they’re saying these are all official issues, not for ‘public’ ears. All we can do the next time is infer what is being regulated behind the scenes,” the human rights activist told Nezavisimaya gazeta.
“By all accounts, our law enforcement structures, in particular those responsible for implementing punishments, no longer feel bound by any restrictions, or even the Constitution,” MHG member Ilya Shablinsky told Nezavisimaya gazeta. He reminded us of Art. 15, pt. 3, of the Basic Law, which says that any acts related to human rights and freedoms cannot be applied if they are not published officially for general review. “This is a serious issue and a serious violation of the Constitution and laws, but apparently it only upsets human rights activists,” he indicated.
The illegality of imposing secrecy on documents that concern human rights and freedoms was confirmed to Nezavisimaya gazeta by retired federal judge, MHG member Sergei Pashin: “In fact, this is what is going on, there are a great many closed departmental acts, and sometimes they even run counter to law.” Different kinds of orders and instructions cannot go into effect unless they are published and officially registered at the Justice Ministry, but that’s only in theory. Given this, how can anyone dispute a provision whose existence one can only infer? According to him, the legal system looks like an inverted pyramid, with the Constitution at the bottom along with the laws, and on top of them a mountain of substatutory acts. There has been a slew of departmental provision-making, moreover there can be decisions from various structures regarding the same subject, and in addition all this is continuously being “perfected,” making it impossible to follow. As Pashin said, this is a permanent game: improve the law and worsen implementing instructions, thus the situation also affects the Justice Ministry’s humanizing promises. Even now, a prisoner is put in a punishment cell supposedly under one DSP order and is denied his correspondence under another order, but one also under the DSP stamp. In short, he emphasized, there is logic to the idea that “a person is not the law’s subject but its object, against whom force and power are applied.”
Translated by Marian Schwartz