Provision of safe conditions for certain categories of prisoners in Belarus
Readdressing the topic of relations between prisoners and prison staff from the point of view of observing the rights prisoners with a particular mental or psychological condition was prompted by several cases that suggest a lack of proper regulation of the legal status of such persons and insufficient tools of their protection against violations and abuses.
In one of the cases that happened in the Homieĺ pre-trial prison, there was an incident with a minor having dementia who was sexually assaulted by other inmates.
The question arises: whether the safety of prisoners can, as required by law, be protected in the existing legal environment; is there any guarantee that the personal security of the prisoner will be protected, regardless of his or her mental state? Can the employees of places of detention, including temporary detention facilities, recognize the problem, identify the variations in health status and are there are any mechanisms that can help protect these detainees from arbitrariness?
It is generally accepted that prisoners, regardless of the nature of their offense, can enjoy all the basic human rights. These include the right to the highest attainable standard of physical and mental health.
According to the Basic Principles for the Treatment of Prisoners (Principle 4), “the responsibility of prisons for the custody of prisoners and for the protection of society against crime shall be discharged in keeping with a State's other social objectives and its fundamental responsibilities for promoting the well-being and development of all members of society.” Principle 9 states that “prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.”
The Standard Minimum Rules for the Treatment of Prisoners (Rule 22) provide that “at every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry. The medical services should be organized in close relationship to the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.”
It further stresses that “sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and treatment of sick prisoners, and there shall be a staff of suitable trained officers.”
Rule 25 specifies the duties of prison staff: “the medical officer shall have the care of the physical and mental health of the prisoners and should daily see all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.” According to Rule 62, “the medical services of the institution shall seek to detect and shall treat any physical or mental illnesses or defects which may hamper a prisoner's rehabilitation. All necessary medical, surgical and psychiatric services shall be provided to that end.”
It is appropriate to recall the fact that Principles 1 of the UN Principles of Medical Ethics describing the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman and degrading behavior or punishment, says that “health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained.”
Andrew Coyle, an expert in human rights in the penal context, believes that “the conditions of imprisonment will have a serious impact on the mental well-being of prisoners. Prison administrations should seek to reduce the extent of that impact and should also establish procedures to monitor its effects on individual prisoners. Steps should be taken to identify those prisoners who might be at risk of self-harm or suicide. Staff should be properly trained in recognising the indicators of potential self-harm. Where prisoners are diagnosed as mentally ill they should not be held in prison but should be transferred to a suitably equipped psychiatric facility.”
“Good health is important to everyone”, says he. “It affects how people behave and their ability to function as members of the community. It has a particular significance in the closed community of a prison. By its nature imprisonment can have a damaging effect on both the physical and mental wellbeing of prisoners. Prison administrations have a responsibility, therefore, not simply to provide medical care but also to establish conditions which promote the wellbeing of both prisoners and prison staff. Prisoners should not leave prison in a worse condition than when they entered. This requirement applies to all aspects of prison life, but especially to healthcare. Prisoners often arrive in prison with pre-existing health problems which may have been caused by neglect, abuse or the prisoner’s previous lifestyle. Prisoners often come from the poorest sections of society and their health problems will reflect this. They will bring with them untreated conditions, addictions and also mental health problems. These prisoners will need particular support, as will those many others whose mental health may be significantly and adversely affected by the fact of imprisonment.”
How is this issue reflected in the national legislation and law enforcement practice?
The Penal Code contains a rule according to which the State guarantees the protection of the rights, freedoms and legitimate interests of convicts, including by securing the conditions of application of punishments and other measures of criminal responsibility, guarantees of social justice, their social, legal and other security. Convicts are entitled to the rights and freedoms of citizens of the Republic of Belarus with the restrictions established by the criminal, penitentiary and other legislation of the Republic of Belarus.
The Code also secures an important right of prisoners: prisoners have the right to personal security. In the event of threats to the personal security of a prisoner he or she is entitled to apply for measures of personal security to any official agency in charge of executing the sentence. The officer shall then immediately take personal security measures. Head of the agency should order the transfer of the prisoner to a safe place or the imposition of other measures to eliminate the threat to the personal security of the convicted person (Article 11 of the Code).
Persons sentenced to imprisonment are sent to prisons, taking into account the conditions necessary for their correction, maintenance of useful social connections with their relatives and to prevent them from committing crimes, as well as to provide their security (Art. 63 of the Code).
Police escort of prisoners shall be subject to segregation rules: persons sentenced to imprisonment, patients with active TB or those who have not passed the full course of treatment of venereal diseases, persons suffering from mental disorders (diseases), persons under diminished responsibility, should be escorted separately and segregated from convicts who do not have these diseases, and, if necessary, by advice of a medical specialist — accompanied by medical workers (Article 66).
No security methods are described in the law. However, it is stated that in exceptional circumstances prisoners may ask to be transferred to solitary confinement for up to six months in order to protect the personal security of the prisoner. This provision also applies to prisoners with active TB, if the results of a medical examination find that the convicted person may be kept in solitary confinement (Article 81 of the Code).
Another component of secure imprisonment is enshrined in Article 107 of the Penal Code (psychological assistance to prisoners): convicts serving sentences in prisons shall receive psychological assistance in adapting to the conditions of detention, overcoming conflicts and normalization of mental status and neutralizing negative cognitions. Psychological assistance shall be provided on a voluntary basis by qualified psychologists.
Resolution No. 174 of 20 October 2000 “On approval of the internal regulations of correctional institutions” specifies the listed standards:
- In the event of threats to the personal security of the convicted person (the prisoner) has the right to file a written statement to an official of the institution.
- The head of the institution shall immediately take a decision on the transfer of the convicted person to a safe place or the imposition of other measures to eliminate the threat to the personal security of the convicted person.
- To that end, the prison administration can use punishment cells, solitary confinement and other premises of the penal facility.
- The transfer of the person to a safe place shall be authorized by the facility head in accordance with Annex 45 for a period not exceeding six months, and in case of emergency — by deputy head on duty before the arrival of the chief, but no more than for 24 hours. During this period, the administration of the penal facility shall take comprehensive measures to address the threats to the personal security of the convict.
- The transfer of the convict to a safe is not viewed as a punishment. The prisoner shall enjoy a general legal provision and prison rules established for this type of facility.
- In case of failure to provide personal security of the convict, head of the facility shall take steps to provide his or her transfer to another institution in the prescribed manner.
These measures give rise to a series of problems and issues that require legislative attention:
Prison rules do not describe any obligations and do not develop the law-based duty of the prison administration to take security measures in relation to a particular person on its own initiative. The adoption of such measures is bound to filing a written application. Can we be sure that a person with mental or psychological problems is able to promptly recognize a threat and take action, including writing to the administration of the detention facility? The Rules emphasizes but one security measure — transfer to a safe place, while ensuring the safety of prisoners should be the goal of a much wider range of actions by representatives of the administration: they must identify the source of the threat and take steps to ensure that prisoners are protected by the force of law, the authority of the administration and specific actions by the prison authorities. Any manifestations of discrimination of prisoners should be eliminated, as well as the conditions that change the legal status of inmates other than those established by law.
What is a safe place? The law does not contain any definition of the notion, while both the Rules and practices have identified such places as those where ordinary prisoners are placed only in connection with the commission of disciplinary offenses: punishment cells and so-called ‘cell-type premises’. Thus, when developing the Rules, the Ministry of Internal Affairs did not bother to search for alternatives to the detention of prisoners, who cannot be provided with safe living conditions. Moreover, the administration’s failure to properly perform its functions results in the solitary confinement of prisoners, which, in fact, are ‘voluntarily’ doomed to the deterioration of imprisonment conditions. A small consolation in this case is a rule that allows such prisoners to retain the right to receive parcels and visitors on a regular basis.
A possible way out of this situation would be creating separate security zones, where prisoners will be provided with increased security conditions — guarding and isolation from the source of the threat —but it will not adversely affect the adequate living conditions and rights in relation to other prisoners. If penal facilities cannot be equipped with these zones, this should not negatively affect the prisoner, and in which case he or she can be transferred to another place of detention, including with less restrictions.
In general, the practice has in a similar way resolved the same problem in relation to detainees and prisoners in custody: the person in custody is placed in a cell by the prison employee on duty in coordination with an operative employee, juveniles — in consultation with the instructor for education, sick persons — by order of a medical employee. Persons with infectious diseases are placed in separate cells. Patients are also placed in isolation, in case they require special medical care, or such persons placed in hospitals for common diseases. Minors are normally placed in small cells accommodating no more than ten people, which are located in separate buildings, taking into account their age, physical development, the characteristics of their personality and psychological compatibility.
In accordance with Article 31 of the Law “On procedure and conditions of detention of persons in custody”, the placement of persons detained in the cells is performed based on their personality and psychological compatibility.
Obviously, the following categories of persons are held separately in order to ensure safety: current or former members of the House of Representatives, members of the Council of Republic of the National Assembly of Belarus, deputies of local councils, employees of the State Control Committee, judges, lawyers, prosecutors, employees of the Investigative Committee, employees of the State Committee for Forensic Examinations, employees of bodies of internal affairs and internal troops, employees of the state security forces, employees of tax authorities, customs officials, civil servants eligible within their competence to give instructions or orders and make decisions regarding persons who are not subordinate to them. The head of the detention facility or the body conducting criminal proceedings may order to hold separately the persons whose life and health are threatened by other persons in custody.
Separate detention is provided to patients with infectious diseases or in need of medical care and supervision.
In accordance with the Law, the person in custody shall be placed in solitary confinement in the absence of any possibility to enforce the requirements of separate detention; in the interest of the life and health of persons in custody; upon written request of the person in custody, including only during night time.
The same rules are applied to the detainees held in the temporary detention facilities housed by internal affairs bodies.
Internal regulations of medical-labor dispensaries declare the right of prisoners to health and personal safety. However, they do not contain any indications of any specific measures adopted to ensure the safety of prisoners.
Medical assistance to those held in the medical-labor dispensaries is provided by the medical staff of the facility. This assistance includes primary medical examination of persons admitted to the facility, regular medical examination during the first three days of their stay with the mandatory appointment of necessary laboratory and instrumental tests; clinical (somatic, psychiatric and substance abuse) and laboratory tests within the first three days after arriving in the facility aimed to establish their physical and mental condition, to identify existing disorders and clarify the diagnosis, to determine the extent of disability in order to make recommendations on the use of appropriate forms and methods of complex treatment; the provision of primary and specialized medical care for persons held in contained in the the medical-labor dispensaries.
In case the persons held in the medical-labor dispensaries are diagnosed with a chronic mental illness or a serious disease that prevent their further stay in the facility, their early release should be applied for to the court no later than 7 days after the announcement of the diagnosis.
Internal prison rules for open-type facilities declare the right to security of the convict. However, neither the Rules nor he Penal Code mention any references to specific measures, which should be applied by the prison authorities.
An important element in ensuring the safety of prisoners is the organization of their medical examinations and healthcare. This activity is regulated by the Regulations on the medical support of persons held in institutions of the correctional system of the Ministry of Internal Affairs, approved by Decree 202/39 of the Ministry of Internal Affairs and the Ministry of Healthcare of 27 August 2003.
To summarize, it should be noted that the law does not fully regulate the provisions for prison security, especially in relation to those who suffer from mental illnesses or due to their psychological characteristics and health status may become a victim of abuse by other prisoners or prison staff.