Effective complaint? Unavailable for prisoners

In Belarus, prisoners do not believe in the effectiveness of complaints against the prison authorities. This lack of confidence is reinforced by legislative prerequisites that are analyzed by Pavel Sapelka, expert on penitentiary law. He also describes possible measures that could change the situation.

Photo: kommersant.ru

There is a widespread belief among prisoners in Belarus that it is complete futile to attempt use the national institutions of appeals against illegal actions on the part of the prison staff.

This kind of statistics, just like most data related to the prison system, is closed to public scrutiny. Earlier information on the results of consideration of prisoners’ appeals and complaints does not contradict this opinion, “the Penal Enforcement Department of the Ministry of Internal Affairs recorded and reviewed 96 communications from citizens concerning unlawful acts by officers of agencies and institutions of the penal enforcement system and secure rehabilitation centres. Between 2011 and 2014, procuratorial authorities considered 158 complaints of abuse of prisoners and persons remanded in custody (67 in 2011, 35 in 2012, 37 in 2013 and 19 in 2014). The cases were dismissed. From 2012 to 2014, the courts heard 15 cases involving complaints by persons remanded in custody, persons deprived of liberty, persons sentenced to life imprisonment and persons held in custody concerning the penalties imposed on them and complaints of persons in administrative detention concerning the types of disciplinary action taken against them. The complaints were not substantiated,” said the National Report to the Universal Periodic Review (second cycle).

The Report mentions the three bodies which are legally entitled to consider complaints received from prisoners: the Department of Corrections (Penal Enforcement Department) of the Interior Ministry, including its regional offices, the prosecuting authorities and the courts.

As noted previously in researches by the authors of monitoring reports, the role of extradepartmental bodies for control over compliance with the law in the execution of punishment and restoring the rights of prisoners is extremely insignificant. Among other things, this is due to certain legislative factors.

Prosecutorial supervision replaced by departmental control

The Criminal Executive Code of the Republic of Belarus has fixed a rule that prisoners have the right to give explanations, to correspond, to apply to the prison administration, the court, or the prosecutor's office with suggestions, applications and complaints.

According to the Law "On Prosecutor's Office of the Republic of Belarus", one of the prosecuting authorities main tasks is ensuring the rule of law, order, protection of the rights and legitimate interests of citizens and organizations, and public and state interests. To this end, the prosecutor's office oversees the precise and uniform enforcement of laws, decrees, orders and other regulations by the national bodies of state administration and other state organizations subordinate to the Council of Ministers, local representative, executive and administrative bodies, officials and other citizens.

Thus, it is quite logical that prisoners' complaints should be considered by the prosecutors, who have the right to intervene, guided by the above Law. However, experts are alarmed by a small number of such complaints: for the entire 2014, as few as 19 applications were considered on the merits. Do not prisoners write complaints at all? They do. But what they usually receive is an answer that their complaint against the Department of Corrections has been forwarded... to the Department of Corrections. Arbitrariness? Practically, yes, but there is an excuse that prosecutors keep referring to — Presidential Decree No. 498 “On additional measures to work with applications from citizens and legal entities" of 15 October 2007, which provided for the following rule: applications (proposals, petitions, complaints) of citizens, irrespective of the state body or other organization that received them, should originally be considered on the merits in accordance with the competence by:

• local executive and administrative bodies, their subordinate organizations, territorial departments (agencies) and organizations, which are subordinate or part of the (system) of central government bodies and state organizations subordinate to the Government of the Republic of Belarus, other state bodies, other organizations engaged in activities and located within the administrative-territorial unit in whose territory the questions raised in the claims were raised (hereinafter - local government bodies);
• other agencies, if the matters set out in the claims fall within the exclusive competence of those organizations.

The same decree approved the list of public bodies and other organizations responsible for considering complaints in specific areas of people’s activity. In addition, complaints related to the penal system fall within the competence of the Department of Corrections.

That's how the relatively independent prosecutorial control is replaced by departmental control, on the part of the Department’s superior bodies. Can such a control be impartial? Of course not; but this is not all: in addition, the convicted person also loses hope for an objective examination of his complaint, as the Department or its local office will not explain that it is exactly after this initial departmental that the right to appeal to the prosecutor's office is granted.

The situation itself is, of course, frustrating: even with the explicit basis for the application of the measures of the prosecutor's response, they will never be applied in reality, and while the prisoner’s failure to submit a repeated complaint does not mean that the problem has been resolved. Rather, measures will be taken to ensure that no dirty line is washed in public...

The same thing happens to the convicts’ appeals to other bodies, where he dares seek justice.

State duty becomes an obstacle when filing a complaint in court

The courts hear appeals of convicts sentenced to arrest, imprisonment, life imprisonment, persons held in custody, against the application to them of measures of correction and complaints by administrative arrestees against the use of disciplinary sanctions.

The participation of convicts in the court hearings is at the discretion of the judge, and this means that the right of a prisoner to a fair trial is, as a rule, broken.

A prerequisite to bring a civil case on the prisoner’s complaint is paying the state fee in the amount of one basic value, or 21 rubles (USD 10.5), which often amounts to the sum of their income for several months, taking into account the prisoners’ obligation to pay for their accommodation and meals, to repay possible penalties imposed on them by the court or a notary officer. The prisoner can be exempted from having to pay the state duty only after providing a document certifying absence of money or inability to be employed. In 2012-2014, the courts examined 15 cases on prisoners’ complaints against the application to them of penalties and complaints by administrative arrestees against the use of disciplinary sanctions.

As indicated in the country’s Report, all appeals submitted to the prosecutor's office were found poorly substantiated, and none of the complaints was granted by the court.

What measures could be taken in order to change the situation?

International documents clearly require that all prisons and places of detention were subjected to a system of inspections, which should be independent of the government body in charge of managing the prisons. These documents provide the prisoners with the right of full and confidential access to inspectors subject to legitimate security measures: Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 29:

“1. In order to supervise the strict observance of relevant laws and regulations, places of detention shall be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment.”

Standard Minimum Rules for the Treatment of Prisoners, Rule 55:

“There shall be a regular inspection of penal institutions and services by qualified and experienced inspectors appointed by a competent authority. Their task shall be in particular to ensure that these institutions are administered in accordance with existing laws and regulations and with a view to bringing about the objectives of penal and correctional services.”

A similar scheme should be followed during the consideration of prisoners' complaints: bodies tasked to examine the complaint should be independent of the administration of places of detention, and in Belarus it is the prosecuting authorities that most of all fall under this definition.

Superior bodies of the Interior Ministry and the Department of Corrections may be involved in the examination of complaints only if the prisoner himself wishes to do so, or for the sake of intermediate collection of data, which should be assessed by an employee of such an independent body. It is only then that the check of the applicant’s arguments would not be delayed to the point where a full inspection is impossible or its findings are already irrelevant to the prisoner.

In many states, a greater role in dealing with prisoners’ complaints and checking their validity is played by representatives of the civil society; this is a good option for all states that recognize the priorities of human rights.

Judicial protection should be provided to the convicted person, regardless of his or her ability to pay of the state duty; as a last resort, it can be provided that the prisoner will be obliged to pay the state duty after the court announced its decision on the complaint.