Women in penal colonies: violation of labor and social rights
Andrew Coyle, the author of aids for prison staff "A Human Rights Approach to Prison Management", (International Centre for Prison Studies) argues that women constitute from 2% to 8% of the total number of prisoners in all penitentiary systems of the world.
The situation of women prisoners is very different from men, and therefore needs to be paid a special attention. Women who are sent to prison have often been the victims of physical or sexual violence and have various health problems. The consequences of imprisonment and its impact on women's lives can vary greatly.
Pavel Sapelka, an expert on issues of the prison system and lawyer of the HRC "Viasna", analyses the issue with regard to the international and Belarusian practice.
At the end of 2014 in Belarus there were 2,185 prisoners in two penal colonies for women. This is 7.3% of the total number of prisoners, which is close to the upper boundary of the conventional percentage of women prisoners.
The rules governing the legal status of convicts, as a rule, do not take into account the prisoners' sex, but have some peculiarities for women serving sentences in penal colonies.
The women who have been sentenced to deprivation of liberty serve their sentences in the penal settlement No. 21 in Vietka district, in penal colony No. 4 in Homieĺ and in penal colony No. 24 in Rečyca district in the conditions of minimum and high-security regimes. Theoretically they can also be sent to prison.
Like all prisoners, women in correctional colonies are required to work. The rules of labor law apply to them, as well as to other prisoners, only partially, namely – in the part of the regulations concerning the length of working hours and occupational safety requirements. The wages to the convicts who implement the monthly norm of working time and keep to the assigned production rates can not be lower than the minimal wage, provided by legislation of the Republic of Belarus for the performance of the relevant work, but no additional payments to the minimum wage are provided.
The wages to the convicted persons who work park-time are calculated proportionally to the length of the working hours and productivity. No minimal wages are determined in this case, even in the case of downtime due to the fault of the employing enterprise. In practice, this means the prospect of symbolic wages, especially after the deduction of the expenditures for food and utilities.
Children's homes are organized in women's correctional facilities. The law requires the administration of the colonies to create the conditions necessary for normal life and development of children. Convicted women may be placed in the children's homes together with their children who are aged up to three years and communicate with them in their free time without limitations. They may be permitted to live with their children in children's homes. However, this does not mean that these women are freed from their duties, including participation in the cleaning and beautification without receiving any payment.
With the consent of the convicted women, their children may be passed to their relatives or, by decision of the guardianship authorities, to other persons, or can be sent to the appropriate children's institutions on reaching the age of three. If a child is held in the children's home of a correctional institution turns three years old and the remaining term of punishment of the mother does not exceed one year, the administration of the correctional institution under the law may extend the stay of the child in the children's home until the expiry of the mother's punishment. However, the adoption of such a decision is a right, not a duty of the administration.
"Pregnant women can be imprisoned only in the most exceptional circumstances. If the need arises, they should be granted the same level of medical care as is in the civilian society. Before giving birth, such women, in all cases, whenever possible, should be transferred to civilian hospitals. As a result such women will be able to receive professional medical assistance, and the children will avoid the stigma – a prison as the place of birth. In either case, the birth certificate shouldn't indicate prison as the place of birth. The necessary regime restrictions should be as mild as possible at this time. If pregnant women are kept in correctional facilities, their administration should pay maximal attention to all issues associated with the birth of the children. The problem of mothers and babies kept in prison is very tangible. In many countries, mothers who are in prison, are allowed to remain in possession of newborns. In this case, the mother and the child must live in a single room, which contains all the tools that are commonly needed for nursing the baby. This arrangement is better compared to keeping a child in a separate nursery unit which the mother could visit only during certain hours. It is very difficult to correctly identify the age at which children should be separated from their mothers in prison. Since the link between a mother and her child is paramount, it is believed that a the child should be able to stay with the mother as long as possible, may be even until the end of her sentence. The opposite argument is that prison is an abnormal environment which has an impact on the child from the very first years of development. Therefore, the child should not be left in jail for more than a few months after birth. In practice, some prison administrations allow the mothers who are in prison, to leave their children with them to reach a certain age – 9 months, 18 months, 4 years and sometimes longer if the child cannot be passed to anyone else,” says Andrew Coyle referring to the analysis of the standards of the international law, psychological and sociological research.
The commentary to the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) emphasizes that the Standard Minimum Rules provide very little guidance as to how to meet the specific needs of pregnant women, nursing mothers, children, and women whose children accompany them in jail. There is no guidance on the treatment of children who accompany their mothers in prison. Given the number of pregnant women and those who are accompanied with children in prison, there should be given a more detailed guidance for dealing with them, so that the needs of women and children in the area of social protection, psychological care and health care are met as fully as possible, in accordance with the provisions of international instruments. Experts do not have a consensus and have not come to an agreement on the question of whether children of imprisoned mothers should stay with them in prison, and up to what age. Laws governing the question of how long children can stay with their mothers in prison vary in different countries around the world. Nevertheless, the general provision is that during the attempts to solve the difficult question of whether to separate a mother and child and at what age, the child's best interests must be taken into account in the first place, in accordance with Article 3 of the Convention on the Rights of the Child. Keeping in mind the conditions in the prison and the quality of care that a child can get out of prison if it will not be left with the mother. This principle means that the prison authorities must apply individual approach in decision-making, depending on the circumstances of the child and the family, as well as the alternative care opportunities available in the local community. These rules indicate that the use of an inflexible policy is often unacceptable due to the great variety of circumstances. They also emphasize the need for an ongoing relationship between mother and child after their separation in order to prevent as much as possible, the damage induced by dissociation.
In Belarusian legislation, there are minor concessions in the prison regime for pregnant and nursing women. According to medical conclusions pregnant and nursing women may receive additional food parcels in the amount and range necessary to maintain good health of mother and child. In accordance with the Criminal Executive Code, the convicted pregnant women, nursing mothers, like minors, the sick and disabled of groups I and II, have the right to improved living conditions and better food. Nutrition of children with mothers in prison colonies, detention centers and prisons, as well as children in the children's homes of correctional facilities, is carried out according to the nutritional standards set for children in children's homes run by the Ministry of Health.
Like convicts released from work due to illness, who did not work for reasons beyond their control, the convicted pregnant women and mothers who feed, are provided with meals free of charge for the whole period of leave from work. However, clothing and utilities are provided to them for a fee.
In prisons, except for penal colonies-settlements, at least 25 % of the accrued wages or other income is put to the account of the convicts, including women, regardless of all deductions, and to the personal accounts of the convicted women older than 55 years, convicted pregnant women, women prisoners with children in the children's homes of correctional institutions – no less than 50% of their accrued wages or other income.
Convicted women who demonstrate a conscientious attitude to work and fulfill the requirements of the regime may be allowed to live outside the correctional colony during release from work due to pregnancy and childbirth, as well as for the period until the child's third birthday, by reasoned decision of the head of the penal colony, agreed with the supervisory commission. Convicted women who are allowed to live outside of correctional colony are settled near the territory of the penal colony in premises belonging to the penal colony, and are under the constant supervision of the administration of the penal colony; they can wear clothing adopted in civil everyday life, have money and use it without restrictions; in the daytime such prisoners enjoy the right of free movement within the boundaries of which are determined by the head of the penal colony; unlike ordinary prisoners, they are entitled to send and receive parcels, packages, small packages and have meetings without limitations.
In the case of systematic or malicious violations of the regime or rules of conduct, the prisoners are deprived of the right to live outside of correctional colony by decision of the head of the colony.
After the end of the period of exemption from work on maternity, convicted women are directed to work by the administration of the penal colony. This means that the women who gave birth to a child in a colony have no right for a leave to care for a child until the age of 3 years. Women prisoners are released from work, from twenty-seven weeks of pregnancy for 146 days and are required to work again after this period .
According to the general rule, prisoners can be assigned to perform unpaid work only for the collective self-care, including cleaning and improvement of correctional facilities and adjacent territories. At the same time women older than 55 years and pregnant women can be sent to such unpaid work only on their own wish. As already mentioned, women with children in the children's home of the colony are not exempt from such work. Prisoners are assigned to such work in turn in their free time. It means that apart from 7-8 hours of paid work a day, 6-7 days a week, prisoners can work without payment and days off for two more hours a day.
The legislation establishes that persons serving sentences in correctional institutions, must be provided with necessary living conditions corresponding to the rules of sanitation and hygiene. The norm of living space per convict in correctional colonies and prisons can not be less than two square meters. For pregnant and nursing women, these standards are not raised. Such standards are unacceptable for any category of convicts and have been repeatedly condemned by the ECHR as insufficient. The European norm is four square meters for a prisoner.
In accordance with the Correctional Code, women with children in children's homes may be granted a short leave from the colony, up to seven days without counting the time necessary for traveling both sides, for leaving their children with relatives or in a children's orphanage. Women prisoners who have handicapped children outside the colony can be granted one short-term leave a year for the same period in order to meet with their children.
Such visits are not permitted to the persons convicted for specially dangerous recidivism, convicted of serious crimes for a period exceeding five years, and especially grave crimes, except for convicts serving sentences in correctional colonies-settlements; sentenced to life imprisonment; convicts whose death penalty was commuted to life imprisonment; prisoners with active tuberculosis; convicted without completing treatment for alcoholism, substance abuse, drug addiction, persons suffering from mental disorders (diseases). In practice, there hasn't been received any information on the possibility to take advantage of this right.
Pregnant women and nursing mothers have certain "benefits" in the case of misconduct: these women aren't placed in a punishment cell, cell-type rooms and the prison regime is not toughened for them. However, other sanctions, such as deprivation of visits, can be applied to them. This contradicts the United Nations Rules for the Treatment of Women Prisoners and penalties for women offenders, not involving deprivation of liberty, under which disciplinary action against women prisoners shall not include a ban on contacts with family, especially with their children. With respect to Rule 28 (Visits involving children shall take place in an environment that
is conducive to a positive visiting experience, including with regard to staff attitudes, and shall allow open contact between mother and child. Visits involving extended contact with children should be encouraged, where possible.) it is necessary to introduce in the national law a special procedure of meetings of women with children.
In accordance with the Criminal Executive Code, police gear and firearms are not applied to women with visible signs of pregnancy, except in cases of armed resistance and commit group or armed attack on the prison staff and military personnel, or other actions threatening the life and health of citizens. This rule deprives of protection certain categories of pregnant women prisoners - those whose pregnancy cannot be determined visually, but is known for police officers. Rule 24 of the Rules (Instruments of restraint shall never be used on women during labour, during birth and immediately after birth) is not directly implemented in the domestic law.
Rule 48 (Pregnant or breastfeeding women prisoners shall receive advice on their health and diet under a programme to be drawn up and monitored by qualified health practitioner. Adequate and timely food, a healthy environment and regular exercise opportunities shall be provided free of charge for pregnant women, babies, children and breastfeeding mothers) needs to be implemented in the law as well.
The aforementioned comment also notes that prisons are not designed for pregnant women and women with young children. It is necessary to make all possible efforts to ensure that such women do not fall into the prison, while taking into account their social danger and the severity of the offense. In recognition of these circumstances, the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders determined that "the use of sentences for certain categories of offenders, such as pregnant women or mothers with infants and young children, should be reduced, and special steps should be taken to avoid extensive use of imprisonment in respect of these categories." Recommendations of the Parliamentary Assembly of the Council of Europe 1469 (2000), "for mothers and children in prison", adopted on 30 June 2000 also encourage to develop penalties that can be applied in the places of residence of mothers with small children and avoid the use of imprisonment. "
In Belarus, such a form of penalty as delaying punishment against convicted pregnant women and women with children aged up to three years is provided by the law and used in practice. In accordance with the Code, the convicted pregnant women and women with children under three years old, serving a sentence of imprisonment, may be granted by court a deferment of serving the sentence for the time when they can be released from work for pregnancy, childbirth and until the child reaches the age of three. One shouldn't think that such situation can allow a person escape punishment for grave crimes: deferment of imprisonment is not used to the women who are sentenced to more than five years of imprisonment for grave or especially grave crimes.
To summarize, the following should be noted:
- The social and labor rights of women in correctional facilities are unreasonably restricted;
- The government should change the law for real protection of the rights of pregnant women and nursing mothers;
- Criminal justice against women should be the most humane;
- Imprisonment of women, especially pregnant women and mothers with young children, should be used in very limited cases, if there is confidence that the other kinds of penalty will not reach their goal.