No changes in public control over places of detention
Lawyer of the Human Rights Center "Viasna" Pavel Sapelka has analyzed the latest developments in monitoring places of detention in Belarus.
The human rights activist still believes that Public Monitoring Commissions (PMCs) are not a full-fledged tool of public control over the observance of prisoners' rights, while the role of public institutions still preserves its declarative nature.
1. Quantitative indicators of activity
In 2013, the commissions visited 8 places of deprivation and restriction of freedom.
In 2014, representatives of public monitoring commissions (a total of eight commissions) visited seven penal institutions.
In 2015, the PMCs visited only three penitentiary facilities, according to the Ministry of Justice website.
2. Composition of commissions
In accordance with the Regulations on the procedure of monitoring the activity of bodies and institutions carrying out sentences and other criminal sanctions by public associations, which was approved by Decree No. 1220 of the Council of Ministers of 15.09.2006, commission members may be citizens of the Republic of Belarus who have reached the age 25 years and are the representatives of duly registered public associations, the statutory purpose or activity of which is to protect the rights of citizens, including the promotion of the protection of the rights of persons sentenced to punishment and other measures of criminal responsibility, 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 funds and agencies, are not included in the PMCs.
In reality, the bulk of commission members are affiliated with ‘other public associations’, whose activities and objectives are not related to the protection of the rights of citizens, including convicts.
3. The procedure for the formation of the commission
The public association, which has nominated a candidate to the commission, shall send to the Ministry of Justice (Department of justice of the regional (Minsk City) executive committee) a proposal for approval of the candidate and provide for the approval the personal file of the candidate according to a form approved by the Ministry.
The Ministry of Justice (Department of justice of the regional (Minsk City) executive committee) decides on the approval of candidates or the rejection of the proposed candidates. Members of the Republican Commission shall be approved by order of the Minister of Justice. Members of the regional, Minsk city commissions are approved by order of the Head of the Department of Justice of the corresponding regional and Minsk city executive committee.
This means that the formation of the public body is completely in charge of the executive authority.
The Regulation does not provide for a certain procedure of selecting the commission members from the candidates, nor does it mention any criteria for approving the nominees. It only enumerates the formal grounds for refusal: the commission may not include persons having unremoved convictions, or recognized by the court as incapable or partially capable, as well as judges and lawyers. In addition, PMCs cannot include members of national and international public organizations, which do not have their own local offices structures registered in the corresponding region.
4. Scope of control
The scope is limited to open-type correctional institutions, arrest houses, prisons, and criminal executive inspections. Monitoring detention facilities is limited to control in relation to convicts left in detention centers for performing household activities.
Thus, control of the observance of rights in pre-trial jails in respect of persons in custody until a court decision in local police departments, activity therapy centers, offenders’ detention centers, remand houses and other places of unfreedom is not within the competence of the PMCs.
5. Rights of commission members
Commission members have the right to visit prisons only after obtaining a permit from the offices of the Department of Corrections of the Ministry of Internal Affairs in the corresponding region, the city of Minsk and Minsk region. A permit should be obtained through an application, which specifies the purpose of the visit and the number of commission members. This means that the body, whose work is under control, is entitled to refuse the controlling entity access to the territory, as well as to know in advance the details of control.
Heads of the territorial bodies of internal affairs authorize visits to criminal executive inspections, regular facilities with no security restrictions, which ordinary citizens can visit without permission.
The law does not enshrine the right to talk to prisoners in private. The previous version of the Regulation included a direct indication to the fact that the conversation should take place in the presence of a prison officer, but that does not suggest a guarantee to speak privately in an environment where prison employees do not exercise control over the content of the conversation (as reflected, for example, in legislation on the Bar).
After receiving permission to visit the penal facility or the criminal executive inspection, the Commission shall inform the head of the institution of the date and time of the visit.
The monitoring commission members are prohibited to carry out film, photo, video and audio recording; receive written requests from prisoners serving sentences of arrest, imprisonment and life imprisonment. These prohibitions emasculate the possibility of commission members to monitor the activities of penal facilities. In particular, upon finding a violation, a PMC member is unable to document it in a photo or video. Also, in case commission members receive information of torture, ill-treatment of prisoners, they cannot document the traces of beating, receive from a prisoner written evidence or explanation.
Finally, the prisoner is not allowed to enter into a confidential correspondence with the PMC.
6. Financing of the commission’s activities
The public association, which nominated its representative to the commission, is entitled to reimburse expenses related to the implementation of controlling activities. The government does not provide finds for the activities of monitoring commissions.
7. Development of the institute of public control
The recent changes in legislation governing the work of PMCs introduced in 2011 provided for the right to conduct a survey of persons held in institutions, according to a form approved by the Ministry of Justice in coordination with the Ministry of the Interior; request information from the administration of penal facilities and documents necessary for carrying out public control and the preparation of findings, with the exception of documents from the personal files of prisoners.
The very fact of restricting the ability to interview prisoners is unjustified. The standard form does not contain a number of important issues that are essential for the implementation of control; there are many questions that require profound knowledge of the law; some questions are too general.
In order to evaluate the effectiveness of the PMCs’ activities, it would be important to see how many times the commission members exercised their right to request documents and information.
8. Role of NGOs in public control
In accordance with the Regulations, involvement of NGOs in the activities of penal facilities is restricted to the following areas:
improvement of living conditions and health care for inmates of institutions;
participation in the organization of work, leisure, and 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 for inmates of institutions;
assisting in the preparation of prisoners for release, addressing housing and community issues, employment, medical care and social security, social and psychological rehabilitation and adaptation;
strengthening the material and technical resources of institutions executing sentences and other criminal sanctions;
with respect to PMCs’ recommendations in the following forms:
providing gratuitous (sponsor) assistance to bodies and institutions in charge of executing sentences and other criminal sanctions;
funding for programs promoting the activities of bodies and agencies in charge of executing sentences and other criminal sanctions;
other forms not prohibited by the legislation.
This means that the participation of NGOs and human rights defenders in monitoring places of detention is practically impossible.