Expert: Restrictions on prisoners’ appeals to state bodies, public organizations and media are groundless

2013 2013-12-23T16:28:56+0300 2013-12-23T16:28:56+0300 en The Human Rights Center “Viasna” The Human Rights Center “Viasna”
The Human Rights Center “Viasna”
Pavel Sapelka

Pavel Sapelka

“The prison is a community with rules and regulations which apply in different ways to everyone concerned, staff, prisoners and visitors. Since it has a hierarchical structure it is especially important that its regulations should be understood and followed by everyone, not solely by prisoners. If there is a clear set of procedures to ensure that decisions are made properly there will be less need for complicated arrangements to deal with the consequences of poor decision making. Since prisoners are expected to obey the rules of the prison, and eventually those of the outside society to which they are to return, it is important that rules should be implemented fairly and equitably. From time to time prisoners are likely to perceive an element of unfairness in the way they are treated, either individually or in a group. This will happen even in the best managed prisons. It is important that there should be a set of procedures which allow prisoners to make special requests and to register any complaints which they have. These procedures should be clearly laid out in a way that can be understood both by prisoners and by the staff who deal directly with the prisoners.” [1]

For every country the situation in the prison is characterized by the fact that those who complain about violations of the law are under the control of those against whom their complaints are directed. In such circumstances, as noted by the inmates of Belarusian prisoners and penal colonies, it appears that it is not in the interests of prisoners to file even a very reasonable complaint. Therefore, the law must not only declare, but also provide an appealing mechanism under which a prisoner cannot be punished for filing a complaint, even if it is found to be unreasonable.

“If prisoners are not in a position to raise complaints personally, it should be open to their family or representative to raise the issue on their behalf.” [2]

Article 2 of the International Covenant on Civil and Political Rights states that:

“Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.”

Principle 33 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that:

“1. A detained or imprisoned person or his counsel shall have the right to make a request or complaint regarding his treatment, in particular in case of torture or other cruel, inhuman or degrading treatment, to the authorities responsible for the administration of the place of detention and to higher authorities and, when necessary, to appropriate authorities vested with reviewing or remedial powers.

2. In those cases where neither the detained or imprisoned person nor his counsel has the possibility to exercise his rights under paragraph 1 of the present principle, a member of the family of the detained or imprisoned person or any other person who has knowledge of the case may exercise such rights.

3. Confidentiality concerning the request or complaint shall be maintained if so requested by the complainant.

4. Every request or complaint shall be promptly dealt with and replied to without undue delay. If the request or complaint is rejected or, in case of inordinate delay, the complainant shall be entitled to bring it before a judicial or other authority. Neither the detained or imprisoned person nor any complainant under paragraph 1 of the present principle shall suffer prejudice for making a request or complaint.”

Rule 36 of the Standard Minimum Rules for the Treatment of Prisoners:

“1) Every prisoner shall have the opportunity each week day of making requests or complaints to the director of the institution or the officer authorized to represent him.

(2) It shall be possible to make requests or complaints to the inspector of prisons during his inspection. The prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director or other members of the staff being present.”

It should be noted that the legislation of Belarus does not prohibit filing complaints about conditions in an administrative procedure by the prisoner’s family in his interests. Such restrictions are, however, provided by the Code for Criminal Procedures and they relate to the right to appeal the sentence and subsequent court decisions, where complaints can be filed only by convicts, their counsel and the legal representatives of minors.

In prison, no procedures should be applied that can prevent prisoners from filing legal complaints or requests. Disciplinary rules should not contain provisions impeding prisoners’ rights to file complaints, for example, by punishing them for allegations against the staff, which is subsequently proved to be unfounded.

There is reasonable assurance that the main factor that prevents prisoners from filing complaints is their belief that the staff is able to take revenge for it. Prison staff must also understand that if they face any accusations they can protect themselves from unfounded allegations by inmates in a manner prescribed by law.

“In China and some other countries, prosecutors in charge of investigating complaints from prisoners require that complaints should be put into locked boxes that can only be opened by the prosecutor.” [3]

Many complaints of convicts most likely deal with matters relating to the daily routine, to a method used for the treatment of prisoners, the preservation of their everyday household rights. “Matters which will be of little importance to people in normal civil society can take on great significance in the highly disciplined world of the prison, in which there are likely to be regulations affecting almost every aspect of daily life. One of the main objectives of the prison administration in this area should be to prevent a simple request developing into a complaint, or a complaint developing into a formal grievance, or a grievance developing into an appeal to a higher body. [4] However, Belarus is characterized by the brutal rupture of this chain at the first stage: “No complaints – no problems”, although there is obligation of the administration to meet the legitimate demands of the prisoners or to compromise in disputable cases.

In Belarus, in accordance with the national law, every convicted person may make a suggestion, request or complaint orally or in writing. Prisoners are entitled with a right to submit proposals, applications and complaints only on their own behalf. Written proposals, statements and complaints can be sent through the administration of the correctional institution. Unsigned complaints are not subject to consideration and thus cannot be sent. Proposals, applications and complaints addressed to the bodies in charge of exercising control and supervision over institutions executing criminal punishments are not subject to reading and censorship and shall be forwarded to the destination no later than within 24 hours, excluding weekends and public holidays. Other complaints by convicts are censored.

Proposals, applications and complaints related to receiving parcels and packages, providing meetings, spending money, salary, employment, health care, providing clothing and equipment, as well as other matters of similar nature (except for proposals, applications and complaints addressed to the bodies responsible for control and supervision over institutions executing criminal punishments), which can be solved by the prison administration, are resolved without waiting for the outcome of their consideration by the bodies or the person to whom they are addressed.

Proposals, applications and complaints to state agencies and public associations, as well as to state officers (except for proposals, applications and complaints addressed to the bodies responsible for control and supervision over institutions executing criminal punishments), shall be supplemented by the prison administration’s letter, which summarizes its opinion on the merits. Applications and complaints to judicial bodies and prosecutors, which request a reduction of punishment, as well as applications for transfer to another penal facility, are sent together with short references.

Written proposals, applications and complaints are registered with the administration of the penal facility and forwarded to the destination not later than within a three-day period. Responses received upon the consideration of proposals, applications and complaints are announced to convicts upon receipt, but no later than within a three-day period. The wording is used by the prison administrations to only announce the text of replies without providing the prisoner with the paper itself, which complicates further correspondence of convicts, who are thus deprived of opportunities to use the text for the preparation of, for example, a repeated complaint.

Proposals, applications and complaints related to decisions and actions of the bodies and institutions executing punishments and other criminal sanctions do not suspend their execution.

Proposals, applications and complaints addressed to government agencies, newspapers and magazines, public associations and officials containing issues that these bodies, public associations or officials by virtue of the provisions about them or their legal authority are not competent to decide should be sent to recipients at the request of the convict. The latter is recommended to address the proposal, application or complaint to the appropriate authority, organization or official. If the convict insists on sending the proposal, application or complaint to the above public agency (NGO), official or other organization, he or she should be explained that his or her proposal, application or complaint considered by the administration of the penal facility, whose decisions are appealed by the convict, as well as other issues related to the execution of criminal penalties, in accordance with Presidential Decree No. 498 “On additional measures to work with appeals by citizens and legal entities” of 15 October 2007, should be initially sent to the Department’s regional directorate or to the Department’s directorate in Minsk and Minsk region and are subject to review on the merits in accordance with their competence, and in case of repeated disagreement with the outcome of the consideration the convict may apply to the Department, the Ministry of Internal Affairs of the Republic of Belarus. Decisions of the Ministry of Internal Affairs on requests or complaints can be appealed in court.

In other words, if the prisoner writes, for example, to a public organization or public monitoring commission at all levels to complain about conditions of detention, such a message is subject to censorship. As a result, the decision on its possible transfer to the destination will be made after two official considerations of the issue by the Department of Corrections ordered by a court’s decision. Such a procedure unduly restricts the right of convicts to file complaints and reports of their condition, on the one hand, and that of the media and public organizations to obtain information on compliance with the rights of convicts, on the other hand.

As controversial is a provision stating that proposals, applications and complaints containing obscenities, as well as degrading the honor and dignity of the staff of penal facilities should not be sent to destination. Such letters are attached to the materials of the convict’s personal file, and the persons who have submitted them shall be liable in accordance with the laws of the Republic of Belarus. However, the question arises: is the prison administration competent enough to independently determine what expressions are obscene and defamatory against its employees. It seems that that such communications should be considered by the addressee, as they may contain important information, while the question of the protection of personal rights of persons whose honor and dignity has been humiliated should be decided in accordance with the general rules of civil law, regardless of whether these persons are prison staff or not.

Therefore, the Belarusian legislation governing the rights of convicts should be amended, aimed at ensuring the real rights to file petitions or other communication of their conditions to the government agencies and other institutions, e.g. public organizations and the media. In this part, the rights of prisoners cannot be different from those common to all, since no restriction of this right is grounded.

Prisoners' correspondence with the lawyer should be secured with a protection procedure that would be equal to the protection of correspondence with the bodies exercising control and supervision over institutions enforcing criminal penalties, when censorship of correspondence is limited only to control of prohibited attachments.

[1] A Human Rights Approach to Prison Management: Handbook for prison staff. Andrew Coyle. International Centre for Prison Studies. London. 2002.

[2] Ibid.

[3] Ibid.

[4] Ibid.