Expert analysis of legal amendments governing detention in activity therapy centers (LTPs)

2014 2014-07-31T16:39:48+0300 2014-07-31T16:39:48+0300 en http://spring96.org/files/images/sources/sapelka-italia-1.jpg The Human Rights Center “Viasna” The Human Rights Center “Viasna”
The Human Rights Center “Viasna”
Pavel Sapelka

Pavel Sapelka

Having analyzed legal amendments governing detention in activity therapy centers (so called LTPs), Pavel Sapelka, an expert in the prison system law, states that LTPs still perform punitive functions, and the expected increase in the number of these institutions will certainly entail a boost in the number of persons held in them.

This spring, Belarusian legislators announced changes in a number of legal acts dealing with sending individuals suffering from alcoholism or drug addiction to activity therapy centers (LTPs).

On June 29, the changes took legal effect as part of the Law of the Republic of Belarus “On the procedure and conditions of sending citizens to activity therapy centers and conditions in detention in them”. In accordance with the new version of Part1, Article 4 of the Act, LTPs can admit the following categories of people:

citizens suffering from chronic alcoholism, drug addiction or substance abuse, who during one year have been three times and more brought to administrative responsibility for administrative offenses committed while intoxicated or in a condition caused by the consumption of drugs, psychotropic substances, their analogues, toxic or other intoxicating substances, have been warned in accordance with this Law about the possibility of being sent to activity therapy centers and during one year after this warning brought to administrative responsibility for administrative offense committed while intoxicated or in a condition caused by the consumption of drugs, psychotropic substances, their analogues, toxic or other intoxicating substances;

citizens obliged to recover costs spent by the state for the maintenance of their children in public care who have twice during the year violated labor discipline due to the consumption of alcoholic beverages, abuse of drugs, psychotropic substances, their analogues, toxic or other intoxicating substances and in connection with this have been warned about the possibility of being sent to activity therapy centers and during one year after this warning have violated labor discipline because of consumption of alcoholic beverages, abuse of drugs, psychotropic substances, their analogues, toxic or other intoxicating substances.

The main difference from the previous version of the article was an indication that that the decision about sending to an LTP, given the formal grounds, has become a right, not an obligation of the court. Until now, the Act used the wording “detention in activity therapy centers shall be applied to”, which limited court procedures to mere stating and verifying the existence of legitimate reasons for sending a person to an LTP and executing by the requesting authority of a number of formalities related to the detention.

The Law expands the range of persons covered by its action: now the citizens suffering from chronic alcoholism, drug addiction or substance abuse include both the citizens of the Republic of Belarus and foreign citizens and stateless persons permanently residing in the Republic of Belarus, who, as a result of a medical examination, were diagnosed with chronic alcoholism, drug addiction or substance abuse.

The Act introduced a new provision allowing to appeal against a warning about the possibility of detention in an LTP issued by the head of the territorial authority of the Interior or his deputy to a superior territorial authority of the Interior, prosecutor or the court.

The procedure for preparation and submission of materials to the court for sending a citizen to an LTP has not changed significantly.

In particular, the head of the territorial body of the Interior or his deputy within ten days after receiving information about the bringing the citizen, who was warned about the possibility of detention in an activity therapy center, to an administrative responsibility for an administrative offense committed while intoxicated or in a condition caused by the consumption of drugs, psychotropic substances, their analogues, toxic or other intoxicating substances, should during one year after the warning send the citizen for a medical examination.

The head of the territorial authority of the Interior or his deputy within ten days after receiving a medical report certifying that the citizen specified in the first part of this article is suffering from chronic alcoholism, drug addiction or substance abuse, and that he does not suffer from a disease preventing him from being held in an LTP, should submit a statement to the court about the citizen’s detention in an activity therapy center.

The statement should include:

a medical report certifying that the citizen is suffering from chronic alcoholism, drug addiction or substance abuse, and the absence of diseases preventing his detention in activity therapy centers;

copies of decisions on the imposition of administrative penalties for administrative offenses committed by a citizen while intoxicated or in a condition caused by the consumption of narcotic drugs, psychotropic substances, their analogues, toxic or other intoxicating substances;

a warning about the possibility of detention in an activity therapy center;

data on the marital status of the citizen and the existence of dependent minor children.

The head of the territorial authority of the Interior or his deputy within three days after receiving the medical report certifying that the citizen obligated to reimburse the expenses spent by the state for the maintenance of children in public care, who has been warned about the possibility of detention in an activity therapy center and within one year after this warning violated labor discipline due to the consumption of alcoholic beverages, use of narcotic drugs, psychotropic substances, their analogues, toxic or other intoxicating substances, does not suffer from a condition that can prevents him from detention in an activity therapy center, should submit a statement to the court about sending the citizen to an activity therapy center. The statement should include:

a medical report about the absence of a disease preventing the detention in an activity therapy center;

information from the employer who entered into an employment agreement (contract) with the citizen on account of working time, violations of labor discipline, including those that entailed reduction of his salary (tables of working time, orders on the dismissal of performance and other documents confirming the facts of violations of labor discipline), due to the consumption of alcoholic beverages, use of narcotic drugs, psychotropic substances, their analogues, toxic or other intoxicating substances;

a copy of the decision of the court order for the recovery of costs incurred by the State for the maintenance of children in public care, the court’s decision on deprivation of parental rights, on removal of the child without deprivation of parental rights, or for the recovery of costs incurred by the State for the maintenance of children in public care.

Changes also were made to the Civil Procedure Law of the Republic of Belarus of July 1, 2014 “On amendments and additions to certain laws of the Republic of Belarus on the improvement of civil proceedings”: Section VII of Chapter 29 (Proceedings in cases arising from administrative relations) was supplemented by para. 6-2 – “Peculiarities of consideration and resolution of citizens’ complaints against warnings about the possibility of detention in an activity therapy center and complaints by citizens detained in activity therapy centers against the decision about the use of corrective measures”.

Citizens’ complaints against a warning about the possibility of detention in an activity therapy center should be considered by the court according to the territory jurisdiction (place of residence) of the applicant.

Complaints of citizens held in activity therapy centers against a decision on the use of corrective measures should be considered by the court according to the territory jurisdiction of the activity therapy center.

Citizens’ complaints issued against a warning about the possibility of detention in an activity therapy center can be filed in court within one month starting from the date of issuance of the warning, or from the date of receipt of a refusal of the appeal against the warning to a higher official (prosecutor), or after the expiration of one month after the submission of an appeal to a superior official (prosecutor) if the applicant did not receive a response. The complaint shall include a copy of the warning.

Complaints of citizens held in activity therapy centers against a decision about the use of correctional measures can be filed in court within one month starting from the date of familiarization of the citizen with the decision on the application of penalties, or from the date of receipt of dismissal of the appeal against the decision from a superior official (prosecutor), or after the expiration of one month after the submission of the appeal to the superior official (prosecutor) if the applicant did not receive a response. The complaint is filed through the administration of the activity therapy center. The activity therapy center attaches to the complaint documents describing the identity of the citizen held in the facility, his behavior, copies of the documents based on the materials of the contested decision. Filing an appeal does not suspend the execution of the contested decision until the resolution of the complaint. The complaint must be examined by the court not later than ten days after its receipt.

The complaint is considered by the court involving the applicant only if the court finds that his appearance for a hearing is mandatory. Otherwise, the court is restricted to studying written requests and materials. Accordingly, the applicant is not entitled to hear the explanations of the facility’s representative involved in the process, and to enter motions and objections during the trial.

Without doubt, this provision violates the applicant’s right to a fair trial, however, the Constitutional Court of the Republic of Belarus by its decision of June 20, 2014 No. R-930/2014 “On the conformity with the Constitution of the Law “On Amendments and Additions to Certain Laws of the Republic of Belarus on the Improvement of Civil Proceedings” recognized the Act consistent with the Constitution of the Republic of Belarus.

The Constitutional Court drew attention to the provision of the paragraph 2 of Article 358 [5] of the CCP stipulating that a complaint of the citizen held in an LTP should be considered by the court not later than ten days from the date of its receipt by the court with the participation of the applicant, in the event that the court finds his appearance in court mandatory, and a representative of the LTP.

“This provision, which allows a court session without the participation of the applicant, refers to his detention in the LTP – an organization created for forced isolation and medico-social rehabilitation with compulsory labor of citizens suffering from chronic alcoholism, drug addiction or substance abuse, and citizens obliged to reimburse resources expended by the State for the maintenance of children in public care, in case of systematic violation of labor discipline by these citizens due to consumption of alcoholic beverages, drugs, psychotropic, toxic or other intoxicating substances.

According to the Constitutional Court, this legal regulation does not violate the constitutional right to judicial protection of a person held in LTP, since, in accordance with Article 70 of CCP, based on Part 1 of Article 62 of the Constitution, citizens have the right to administer their cases in court in person and with the help of a proxy.”

Such a position of the Constitutional Court is surprising: the Court cites an article of the Constitution which directly provides the right of citizens to personally administer their case in court. In accordance with Article 22 of the Constitution, everyone is equal before the law and is entitled without any discrimination to equal protection of their rights and legitimate interests. In accordance with Article 23 of the Constitution, the restriction of rights and liberties shall be permitted only in cases prescribed by law, in the interests of national security, public order, morality, health, rights and freedoms of others.

The Court failed to investigate either the alleged breach of the principle of equality of parties nor the ability of LTP inmates to exercise in practice their right to conduct their cases through a representative.

Upon review of citizens’ appeals against warnings issued to them about the possibility of detention in an activity therapy center, complaints of citizens held in activity therapy centers about decision on the use of corrective measures, the court shall make one of the following motivated decisions:

to dismiss the contested warning about the possibility of being sent to an activity therapy center or the contested decision to apply penalties;

to confirm the validity of the appeal and to reverse the warning about the possibility of being sent to an activity therapy center or a decision on the application of penalties.

The court’s decisions to confirm the validity of appeals and to cancel the warnings about the possibility of being sent to an activity therapy center or a decision on the application of penalties shall take effect immediately.

Law has substantially clarified the procedure for execution of the court ruling on the detention of citizens to activity therapy centers.

Citizens are still transported to activity therapy centers by local bodies of the Interior.

One of the new provisions says that in order to be brought to an activity therapy center a citizen can be detained by the territorial authority of the Interior for up to three days on the basis of an enforceable court decision on his detention in an activity therapy center. The detained citizen expected to be sent to an activity therapy center should be held in the temporary detention facility of the territorial body of the Interior in the manner and on the terms established by the legislation of the Republic of Belarus for the detention of persons serving administrative detention.

Citizen, the patient with chronic alcoholism, drug addiction or substance abuse treatment and dispatched labor rehabilitation within fifteen days from the date of entry into force of a court decision on his direction in health labor rehabilitation.

The citizen obliged to reimburse the costs spent by the state for the maintenance of children in public care is sent to an activity therapy center not later than the day following the day of entry into force of a court decision on his detention.

The wages and other similar income of citizens held in activity therapy centers are subject to deduction of the cost of meals, clothing and footwear (except for the cost of special food, special clothing and footwear, other personal protection equipment), utilities, and other deductions in accordance with the legislative acts of the Republic of Belarus.

The cost of food, clothing and footwear, utilities costs is deducted during the term of detention of a citizen in an activity therapy center until their full payment. In case of termination of detention of a citizen in an activity therapy center, the undeducted costs of food, clothing and footwear, utilities costs are charges off as estimated expenses for the maintenance of the activity therapy center.

Procedure for calculation and reimbursement of deducted costs of food, clothing and footwear, utilities and other costs is determined by the Ministry of Internal Affairs in consultation with the Ministry of Finance of the Republic of Belarus.

Reparation (compensation) of damages caused to an activity therapy center and expenses related to the search of citizens held in activity therapy centers, in case of absence without leave, is carried out by an enforcement inscription.

On this occasion, the Constitutional Court in its decision “On the conformity with the Constitution of the Law “On amendments and additions to certain laws of the Republic of Belarus on detention of citizens in activity therapy centers and the conditions of detention in them”, recognizing it as consistent with the Constitution, however, pointed out: “The Constitutional Court notes that the provision of paragraph 16 of Article 2 of the Act, which provides for reparation (compensation) of damages through an enforcement inscription, does not fully take into account the legal position of the Constitutional Court expressed in the above-mentioned decisions, and offers the legislators in the process of improvement of legislation to proceed from the legal positions set out in these decisions of the Constitutional Court regarding the judicial protection and the provisions of Article 60 of the Constitution, which guarantees everyone the protection of rights and freedoms by a competent, independent and impartial tribunal in the period provided by the law”.

In accordance with Article 8 of the Act, a citizen may be sent by the court to an activity therapy center for a period of up to twelve months.

Detention of a citizen in an activity therapy center may be extended by the court for up to six months if he has a specific set of legal penalties, in case of absence without good reason in the activity therapy center for more than one day, absence without good reason in the activity therapy center for less than one day in case of repeated violation during three months, and in case of delayed return from social leave without a valid reason.

The new version of the article has provided a rule by which detention of a citizen in an activity therapy center can be reduced by the court for up to six months on the basis of a decision of the administration of the activity therapy center on the possibility of reducing the period of detention.

A decision of the administration of the activity therapy center on the possibility of reducing the period of detention should contain information on the provision to the citizen held in the activity therapy center of medical and psychological care, on completed professional training and retraining courses, his attitude toward labor, on an adequate perception of educational influence, on maintaining his family ties and other information indicating the possibility of reducing the period of detention. The citizen held who is in an activity therapy center, facing the possibility of reducing the term of detention, should not have penalties, his period of stay in the activity therapy center should be at least six months.

A decision of the administration of the activity therapy center on the possibility of reducing the period of detention should contain conclusions on the basis of information specified in Part 2 of this Article, that the citizen does not need forced isolation and is ready to adapt to society. These findings are approved by the head of the activity therapy center.

Having approved the conclusions, the head of the activity therapy center sends a statement to the court to reduce the term of detention. The statement shall include the conclusion of the administration of the activity therapy center on the possibility of reducing the period of detention, reference of the citizen held in the activity therapy center, and his personal file.

In accordance with Article 393-11 of CCP, a request to extend the term of the citizen’s detention in the activity therapy center, reducing the period of detention should be submitted by the activity therapy center to the court according to the territory of jurisdiction.

Thus, the initiative to reduce the term of detention is the exclusive right of the administration of the activity therapy center; bringing civil proceedings on the initiative of the citizen held in the activity therapy center is not provided by the law.

In accordance with the Code of Civil Procedure, a request to extend the term of the citizen’s detention in the activity therapy center, reducing the period of detention should be considered by the court within three days after their receipt by the court with the obligatory participation of a representative of the activity therapy center.

This rule does not provide for participation in the hearing and taking into account the positions and explanations of the citizen held in the activity therapy center when deciding on the extension of the citizen’s detention in activity therapy centers and reducing the period of detention.

The grounds for termination of a citizen’s detention in the activity therapy center include entry into force of the verdict of conviction the citizen held in the activity therapy center, punishment in the form of arrest, imprisonment, life imprisonment, the death penalty, restrictions on freedom providing for detention in an open-type correctional institution. Previously, this question was not settled by law.

In connection with the provision allowing law enforcement bodies to detain for up to three days citizens sent to activity therapy centers, amendments were introduced to the Law of the Republic of Belarus “On the procedure and conditions of detention”. The new version of the relevant rule establishes that:

temporary detention facilities are designed for short-term detention of detainees in accordance with the Criminal Procedure Code of the Republic of Belarus.

The temporary detention facilities of the territorial bodies of the Interior also hold:

persons detained in accordance with the Criminal Code of the Republic of Belarus;

detained citizens awaiting sending to activity therapy centers of the Ministry of Internal Affairs of the Republic of Belarus.

The temporary detention facilities can hold for up to three days persons subjected to a preventive measure of detention before sending them to a remand center.

The temporary detention facilities can admit persons held in custody in remand centers, where it is necessary for the performance of procedural actions outside the settlements where the remand are located, from which their daily delivery is not possible, for the period of proceedings. The basis for such a transfer are a ruling of the prosecuting authority or the decision (ruling) of the court.

Separate premises of the temporary detention facility of the territorial body of the Interior can hold administratively arrested persons and persons subjected to administrative detention for administrative offenses, which may entail an administrative penalty in the form of arrest or deportation, as well as persons subjected to an administrative detention for committing administrative offenses while intoxicated, which may entail an administrative penalty in the form of administrative arrest (after sobering up), in the absence of a detention center in the structure of the territorial authority of the Interior or possibilities of detention of these persons in the center of the insulation of offenders of the body of the Interior.

The provision saying that that detained citizens awaiting sending to an activity therapy center of the Ministry of Internal Affairs of the Republic of Belarus should be held in the temporary detention facility of the territorial body of internal affairs in the manner and on the terms established by the legislation of the Republic of Belarus for the detention of those serving administrative detention was not reflected in the Act.

Summarizing the above, we should note the following:

- The state represented by the legislative bodies supports the existence of a punitive institution, which is fundamentally flawed in terms of compliance with its international obligations in the area of ​​prohibition of forced labor and arbitrary deprivation of liberty;

- Compulsory isolation in activity therapy centers (LTPs) for medical and social rehabilitation with compulsory labor adds more features characteristic of imprisonment;

- constitutional control ignores violations of fundamental human rights by applied legislation and its practical application.

Certainly, forced isolation activity therapy centers (LTPs) for medical and social rehabilitation with compulsory labor to a minimum extent solves the problem of treatment of chronic alcoholism, drug addiction or substance abuse. As noted in an interview [i] by the Deputy Chairman of the House of Representatives’ Standing Committee on National Security Valery Haidukevich, “unfortunately, when a man returns from the LTP, he starts behaving the same way”. The MP stresses that there are yet no statistics on how many people are cured after detention in activity therapy centers or at least do not abuse alcohol for a long time. Thus, LTPs still perform mostly punitive functions. The planned increase in the amount of LTPs will probably entail an increase in the number of prisoners.

 

[i] http://house.gov.by/index.php/,279,35454,1,,0,,,0.htmlhttps://spring96.org/ru/news/72270

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