Public control of prisons: Legislative restrictions
The Criminal Executive Code of the Republic of Belarus provides for control and involvement of public associations in the work of correctional institutions (Article 21 of the Code).
On the basis and in the manner prescribed by law, associations may exercise control over the activities of agencies and institutions executing punishment and other criminal sanctions.
The Code stipulates another specific form of involvement in the work of correctional institutions: NGOs can participate in the correction of convicts, and also assist in the work of agencies and penal institutions.
The correction of convicts, as well as the implementation of public control over the bodies and institutions executing punishment, can involve monitoring committees created by local executive and administrative bodies, and for juvenile convicts – juvenile commissions. The operating procedures of monitoring committees and commissions for minors are determined by the laws of the Republic of Belarus.
What is the meaning of the phrase “on the basis and in the manner prescribed by law” included in the rule of the Code providing public associations with the right to control the activities of prisons?
The procedures of exercising control by international, national and local public associations, as well as their involvement in the activities of prisons are governed by a Regulation approved by the Council of Ministers of the Republic of Belarus on September 15, 2006. The Regulation says that control can be implemented through participation of NGOs in public monitoring commissions (PMCs). The right to exercise public control over correctional facilities is granted exclusively to members of these commissions.
This means, according to the government, that public associations themselves, including whose statutes directly provide for protection of the rights of others, or human rights defenders as individuals, cannot be involved in public scrutiny.
In accordance with the Regulation, the PMC system includes:
- the National Public Monitoring Commission of the Ministry of Justice, which is formed of representatives of international and national NGOs and which operates on the entire territory of the Republic of Belarus;
- regional and Minsk city public monitoring commissions created by the chief departments of justice of regional executive committees, which are formed from representatives of local NGOs, local offices of international and national NGOs and carry out their activities in the respective administrative-territorial units of the Republic of Belarus.
Commissions can include citizens of the Republic of Belarus, aged 25, who are representatives of properly registered associations, whose statutory purpose or activity is to protect the rights of citizens, including the promotion of the protection of the rights of convicts, and other public associations. Representatives of unregistered associations, initiatives and citizens’ groups, as well as non-profit organizations established and registered in the form of foundations and agencies cannot be members of PMCs.
Commissions are composed of three to eleven members. Members of the commission receive certificates in accordance with the procedure established by the Ministry of Justice.
A member of the commission is nominated by the governing body of a public association.
The public association nominating a commission member shall submit to the Ministry of Justice (Chief Department of Justice of the regional (Minsk city) executive committee) a proposal for approval of the nominations and submits for approval personal characteristics of the candidate under procedures approved by the Ministry.
This means that the formation of a body for public control is entirely under the authority of the executive power.
The nomination shall be considered within a period not exceeding thirty days and decides whether to approve it or reject the proposed candidate.
The Regulation does not provide for a specific procedure for selecting members of the PMCs, as well as criteria for inclusion of applicants in the PMCs. There only exist formal grounds for refusal: commissioners cannot be individuals with valid conviction or recognized incapable or partially capable by the court as, as well as judges and defense lawyers.
Procedures for the formation of the National PMC, regional and Minsk city MPCs, as well as the organization of their activities, are defined by the Regulations on the procedure for the formation and activities of public monitoring commissions, approved by the Ministry of Justice of the Republic of Belarus on December 15, 2006.
Members of the National Commission are approved by order of the Minister of Justice. Members of regional commissions and the Minsk city PMC approved by head of the Department of Justice of the respective regional or Minsk city executive committee.
The Commission is headed by a chairperson elected among its members in consultation with the Ministry of Justice or local justice departments.
The Commission is authorized to take decisions in the presence of more than half of its members. Decisions are taken by simple majority. In case of equal votes, the Commission supports the decision voted for by the chairperson.
The progress of the commission’s meeting, as well as its decisions, are reflected in minutes, which may be accompanied by proposals, the commission’s findings, or a recommendation. Minutes of a meeting of the National Commission is sent, together with applications, to the Ministry of Justice and the Ministry of Internal Affairs. Minutes of regional and Minsk city commissions are forwarded to the Justice Department and the Department of Internal Affairs of the regional and Minsk city executive committees and, if necessary, to the National Commission.
Is control by the PMCs efficient?
Important is the fact that the scope of control activities by the PMCs is limited to open prisons, arrest houses, and penal inspections of local bodies of the Interior. Control of pre-trial prisons is limited to convicts left in detention centers to perform work. Thus, control of rights in prisons and other places of detention is not within the competence of the PMCs.
In accordance with the Regulation, in order to visit the institution the commission should submit a written request to the chief of the local office of the Department of Corrections of the Ministry of Internal Affairs, indicating the purpose of the visit and the number of commission members who are expected to be involve in the inspection.
After receiving permission to visit the institution the commission shall inform the head of the institution of the date and time of visit, and when visiting the penal inspection – head of the territorial authority of the Interior.
Access of the commission members to the protected area of correctional institutions is governed by the procedure established by normative legal acts of the Ministry of Internal Affairs.
Thus, prison visits cannot be considered an effective means of control, as they are carried out only with the approval of the Department of Corrections, on the date and with the purpose known to the penal institution.
The commission and its members are entitled to:
- having permission, visit the territory of penal facilities, observing the internal rules of these bodies and institutions;
- converse with persons held in institutions, except those in custody, with the consent of the said persons;
- contact the director of the institution or his deputy, as well as other officials of state bodies in charge of issues related to the rights and legitimate interests of persons held in institutions;
- request from the administration of the institution any information and documents necessary for the sake of public control and drawing conclusions, except for materials of operational activities, personal files of convicts and other documents relating to the execution of punishments and other measures of criminal liability in respect of the prisoner;
- conduct a survey of persons in institutions in the form approved by the Ministry of Justice, in consultation with the Ministry of the Interior.
It should be noted that the Regulation does not provide for private conversations (or in circumstances where prison staff can see, but not hear the conversation) with the convict. The Regulation also limits the amount of information provided to members of the PMC, which means that they may be refused, for example, to see the materials of a disciplinary action challenged by the convict.
The monitoring commission members are prohibited to:
- impede the performance of official duties of officers of institutions executing punishment and other criminal sanctions;
- study the materials of operational activities, personal files of convicts and other documents relating to the execution of sentences and other measures of criminal liability in respect of the prisoner;
- have access to a range of technical means of ensuring the safety and supervision of inmates in correctional facilities;
- deliver correspondence, cash and other property to prisoners confined in correctional institutions;
- film, photograph, record audio and video;
- receive written appeals from prisoners serving sentences in the form of arrest, imprisonment, life imprisonment.
Two recent bans dilute opportunities of the commissioners to monitor the activities of correctional facilities. In particular, finding the violation, a member of the PMC is unable to record it in photo and video. In addition, in case members of the PMCs receive information about torture and ill-treatment of prisoners, there is no opportunity to register bruises on the spot by receiving a written evidence or explanation from the prisoner.
Finally, the prisoner is not entitled to enter into a confidential correspondence with the PMC.
Guarantees of activities of the PMCs and associations assisting correctional institutions set out in the Regulations are small in scope and content: public associations that nominated their members to the commissions are entitled to reimburse the member of the commission costs associated with the implementation of its activities; administrations of correctional facilities should assist commissions in the implementation of public control.
In the case of provision to a foreign state, foreign or international organizations, and the media, of false information about the organs and institutions executing punishment and other criminal sanctions, the commission member may be expelled from the PMC by decision of the Minister of Justice, or head of the Chief Department of Justice of regional (Minsk city) executive committees.
Thus, the scope of rights of PMC members and restrictions they face makes this control purely formal.
Information on the activities of the PMCs at various levels is published on the website of the Ministry of Justice. In 2013, it posted only a summary of activities by the commissions.
In 2013, regional PMCs visited: an open type institution No. 1 in Brest, penal colony No. 3 “Vitsba” in Vitsebsk, penal colony No. 15 in Mahiliou, penal colony No. 19 in Mahiliou, penal colony No. 16 in Horki, prison No. 8 in Zhodzina, and audited the work of “conditionally executive inspection of the department of the interior of Tsentralny district of Homel”. No conclusions on the visits were published, and it is no good expecting unbiased approach from “conditionally public” commissions when exercising equally “conditional”.
During their visits, the commissions saw the conditions of life of convicts, the organization of their leisure, employment, health care system, as well as held preventive talks with the prisoners.
On August 19, 2013, representatives of the National PMC visited pre-trial prison No. 6 in Baranavichy to verify compliance with rights of the convicts by the correctional institution administration.
The objectivity and effectiveness of public control can be assessed by the PMCs’ conclusions: “A conversation with representatives of the prison administration included a detailed discussion of the functioning of institutions, the terms and conditions of detention of controlled persons and the punishment of convicts, conditions of work of the arrest house, as well as an inspection of the detention center. Commission members visited the premises of the prison, library, kitchen and other objects placed on the territory of the prison. Reviewing the work of the institution included conversations with the prisoners and controlled persons. No complaints about the work of prison administration, detention conditions were reported. The commission concluded that the conditions of accommodation and nutrition meet all the requirements of the prison system and detention,” says the website of the Ministry of Justice. Meanwhile, the majority of inmates of the prison noted the common problems for all jails: overcrowding, especially for prisoners waiting to be sent to a correctional facility, or "transit" convicts, poor nutrition, lack of comfortable temperature, fresh air and proper lighting.
One cannot say PMCs did hard work: during the entire 2013 seven PMCs visited only 8 correctional institutions out more than 90 places of detention, not including the penal inspections in each territorial division of the Interior existing in Belarus.
What are the forms provided by law for NGOs’ involvement in the work of correctional facilities bodies?
Participation of NGOs in the activities of the penal system is limited to certain areas and a few forms. These areas include:
- improvement of living and health care conditions for prisoners held in institutions;
- participation in the organization of work, leisure, education of convicts;
- participation in the moral, legal, cultural, social, labor, physical education and development of convicts;
- ensuring freedom of conscience and freedom of religion of convicts;
- assisting prisoners in preparation for release, addressing issues of living conditions, employment, health care and social services, psycho-social rehabilitation and adaptation;
- strengthening the material and technical resources of agencies and institutions executing punishment and other criminal sanctions.
Possible forms of participation of public associations are:
- assistance to correctional facilities through gratuitous (sponsor) donations;
- financing of programs of assistance to penal institutions;
- other forms not prohibited by legislation.
In practice, this means that an association wishing to improve the conditions of detention of prisoners must refuse to protect their rights by the state, and provide sponsorship or funds to a program aimed to improve the living conditions of prisoners.