General information about the Law
1
The Law on Detaining People Suspected or Accused of Committing Crimes
(hereinafter, the Law) was adopted by the State Duma of the RF Federal Council on June 21,
1995, signed by the President on July 15 and came in force on July 20, 1995.
The Law applies to all people in custody from the moment of arrest
until such time as the sentence comes in force, or approximately 340,000 people.
The Law replaced old legislative acts (of 1976) that set out the legal
status and conditions of detention in IVSs (militia
lock-ups) and in SIZOs (pre-trial detention centers).
2.
In general, according to experts' preliminary estimates, in spite of
some shortcomings the Law brought Russian legislation more into compliance with
international standards and considerably softened the norms setting out conditions for
detention in IVSs and SIZOs.
3.
Following are some of the changes.
The Law (art. 49) authorizes SIZO and IVS directors independently to release inmates once the time
limit on pre-trial custody expires (previously, the procurator's permission was
necessary). It should be noted here that on March 1, 1995, 39,070 persons (15,5%) were
incarcerated in SIZOs in the violation of the law.
According to Law's article 18, a defense lawyer does not have to
request an investigator or judge for authorization to visit his client (as he did before),
he needs only an identity card and an order from a bar office. If the defense is conducted
by a member of a trade union or any other public organization, a special protocol should
be presented instead of the order of the bar office. The number and duration of meetings
with a defense lawyer from the moment of arrest is not restricted.
Both suspects and the accused are now allowed two three-hour visits per
month with relatives, but only with the authorization of a person or a body in charge of
the case (art. 18).
In accordance with article 20 of the Law, the correspondence of
suspects and the accused with their relatives is not limited, but must undergo censorship
by the administration of a penitentiary institution or a body conducting the
investigation. The administration may delay a letter sent or received for no more than
three days.
According to article 25, suspects and the accused can receive an
unrestricted number of parcels, so long as their weight does not exceed the norms
stipulated in postal rules; the limit on parcels is set at 30 kilos per month (previously,
monthly parcels were limited to 8 kilos, and in some SIZOs,
to 15). The weight of parcels is also unrestricted for juveniles, inmates suffering from
serious diseases (having a medical certificate from a penitentiary institution doctor),
pregnant women and women with children under three years old.
4.
A number of the Law's norms will come into force at a later date.
The norm stipulating the right of prisoners to an individual sleeping
place and 4 sq.m. of space per inmate will come in force in 1998.
Norms allowing IVS prisoners one hour
of exercise daily, to receive family visits, food parcels and bedding, will come in force
on January 1, 1996. Normative legal acts (federal, regional and ministerial) should be
brought in compliance with the Law by January 20, 1996.
Aims and
methods of monitoring
1.
The aim of monitoring was not only to examine the application of
certain norms of Law more generally (that is to find out whether all necessary conditions
were created to apply the law in practice). In addition, we examined how effective the Law
was in solving legal problems and conflicts that were under the old law, and whether the
Law has served to improve or deteriorate prisoners' conditions and the manageability of
institutions.
2.
In the course of monitoring we analyzed written, telephone and oral
information and interviewed prisoners' relatives, law enforcement staff, lawyers, IVS detainees and those released from SIZOs. The interviews were taken by telephone, in food
parcel reception rooms in Moscow SIZOs, in militia
stations and in IVSs. But the bulk of our information
consisted of responses we received to five radio shows, broadcast from August through
October 1995 (four 20-minute broadcasts on Radio of Russia and one 10-minute broadcast on
the Echo Moskvy) that informed listeners about the new Law and requested them to inform us
about violations of the Law.
The MCPR received in all 500 responses,
the majority of which referred to the Law's application in Moscow and the Moscow region.
Here we consider only those violations that are systematic and
widespread.
Legal knowledge of
officials and certain groups of people
1.
As far as we know, from the moment the Law came into force (July 20,
1995) to the beginning of October, a complete text of the Law was published in three
popular and one specialized newspaper, for a total circulation of no more than 300,000.
About 20 articles were devoted to the new Law in the federal and regional media with a
mostly positive response, although some articles suggested that good conditions were being
created for criminals, which the latter did not deserve.
2.
SIZO administrations received the text
of the Law within 3—15 days. Yet even these institutions have only several copies
(1—5) of the text. As of October 10, 1995, the staff of IVSs
and militia stations still do not have this document. Almost all militia officers of those
surveyed had heard nothing about the new Law, neither, apparently, did regional internal
affairs departments and procurator's offices that supervised IVSs
and militia stations, since there were no records about the Law and violations of it in
supervisor's records. Judging by television interviews that were broadcast on Russian
Public Television on October 10, 1995, higher MVD officials also did not have a clear
notion about the Law.
3.
Courts and bar offices (where the majority of defense lawyers work)
have not yet received the text of the Law. During the first month after the Law's
enactment, only 5 of 100 defense lawyers interviewed had the text of the Law. Others
either knew nothing about it or had only partial knowledge.
4.
SIZO libraries do not have copies of
the Law. SIZO cells have copies of "Rules of
Detainees' Conduct" developed on the basis of the "Provision on the Preliminary
Detention" of 1969. SIZO staff claims this is due to
the lack of financial means to supply prisoners, at least, with the documents concerning
their rights.
This is a violation of art.17 part 1 of the Law (the right of the
accused and suspected to receive information about their rights, regime of detention
etc.).
5.
Extracts from the Law appeared in SIZO
food parcel reception rooms (where prisoners' relatives usually come) only at the end of
August.
6.
According to information received from two respondents in October (two
months later after the Law came into force), when they requested to see the Law's text,
members of one of the State Duma commissions dealing with penitentiary problems said that
this Law had not yet been signed by the President.
Application of certain of the Law's
articles
1.
None of the new norms have been applied in IVSs
and militia stations.
2.
The dynamic of the prison population growth remains
unchanged: the number of SIZO prisoners (and cell overcrowding) continues to grow at the
same rate, and on October 1, 1995, the prison population was 280,000 (at the time the Law
was adopted it was 270,000). Extreme overcrowding in prison cells should be regarded as
torture and a violation of the law's art.4 ("detention... should not be accompanied
with torture"... etc.). Para.10 of art.11 (the right of prisoners to 8 hours of sleep
at night) is also not observed because prisoners do not have their own beds to sleep in.
SIZO authorities almost never
observe the article authorizing them to release those whose legal limit in pre-trial
detention has already expired (art.49). Although according to media publications a few
remand prisoners were released when their term expired, on the whole, the number of such
prisoners remained almost unchanged: according the GUIN
MVD, as of October 1, 1995 there were 35,000 inmates kept in SIZOs
in violation of the Law. An insignificant reduction of the number of such prisoners (at
3,000—4,000) might be due to the fact that in some SIZOs
(as, for example, in the Kolomna city SIZO, in the Moscow
region) such prisoners, instead of being released, are sent to the IVSs, where investigations are conducted.
3.
According to A.A.Rogatkin, the Presidium Chairman of the Moscow Bar
Association, in Moscow SIZOs lawyers coming to see their
clients are required to show an authorization from an investigator or a judge, in
violation of art.18. SIZO staff justify their actions by
referring to the absence of new sub-legal acts regulating the Law's application. This view
was confirmed by other lawyers and the Director of Butyrka, the largest Moscow pre-trial
detention center.
Lawyers and investigators still wait from one to six hours in lines for
vacant rooms to meet with their clients.
According to some correspondents, the Law (articles concerning meetings
between lawyers and their defendants) is observed in some regions, for example, in Omsk
and Novocherkask of the Rostov region.
4.
The Law does not address violations of the rights of the accused during
transportation to court rooms.
In violation of art. 11 para 9 and art. 22, defendants are not given
food during the entire period of time they spend outside SIZOs.
As a rule, prisoners to be transported to court, leave their cells at 4:00 a. m., then are
kept in special "collectors" or boxes until 9 a. m., when for the next 2 or 3
hours they are being brought to court rooms. All this time prisoners spend in overcrowded
cages of special vehicles. In court buildings before hearings and during the breaks they
are kept in cramped, dark rooms. After hearings the defendants stay in special vans for
several hours and are usually brought back to SIZOs by
7:00 — 9:00 p. m., when they are delivered again to special cells, and get to their
own cells only at 10 or 11 p. m., sometimes later. Thus, during court hearings prisoners
stay hungry and tired, because they spend many hours in rooms without basic conveniences.
5.
Article 25, stipulating an increase in weight of parcels up to 30
kilos, partially destabilized the work of SIZOs, since
Law was not accompanied with an increase in staff and space for receiving parcels and
visits, or with the purchase of new equipment.
In the Matrosskaya Tishina SIZO,
prisoners' relatives wait from 10 to 14 days to hand over a parcel. The situation in other
Moscow SIZOs, for example, in Butyrka, is less tense
thanks to the help of charitable organizations (the staff of Matrosskaya Tishina turned
down such help), which work extra hours as parcel receptionists. In practice the Law
widened the ground for violations and corruption: the longer the lines, the greater the
opportunities for bribery.
Because of long lines, many prisoners, especially from other towns,
receive no parcels or visits at all.
6.
Many prisoners' relatives complain that investigators and judges give
no reason for refusing to allow visits. Article 18 entitles suspects and the accused to
receive 2 three-hour family visits. But according to this article, visits are allowed if
there is a written authorization of a person or a body conducting the investigation (from
an investigator or a judge). The Law does not require the latter to provide any
explanation of their decision and says nothing about appeals procedures. The Law provoked
a new conflict, having increased social tension in places of pre-trial detention. For
prisoners' relatives who know about their visitation rights, it is stressful to be turned
down. Conditions for various abuses were created for officials concerned, since the Law
gives them the right to make arbitrary decision without any limitations.
The Law suffers from a number of such legal lacunae (for example, Art.
20, on the right to correspondence), which make the innovations a mere declaration and
widen the ground for arbitrariness and corruption.
Conclusions
The new Law not only failed to solve any of the
existing problems of pre-trial detention but worsened the crisis in SIZOs, is partially responsible for the further disorganized
work of penitentiary institutions and for the deterioration of conditions for certain
categories of prisoners and their families, and widened the possibility for abuse and
corruption by officials.
The Law widens the gap between legislative norms and
real rights of citizens (in this case — of suspects and of the accused and their
relatives). The Law discredits the very idea of legal reform, and creates legal nihilism
for ordinary people and officials. It is not surprising that the latter do not even want
to know the new laws, rightly supposing that it will be impossible all the same to fulfill
the whims of lawmakers.
It seems that the law-making process takes place in a
fairy tale where there are no financial restrictions: one can simply wave wave a magic
wand and everything will come true immediately.
Enlarging the living space by 1.6 times (from 2.5 to 4 sq. m) by 1998
seems a mockery of common sense. At present the living space per inmate is 1.6 times less
than it was stipulated in previous legislation. And this is only an average figure: in
common cells of large cities this figure amounts to 0.5 sq.m. per prisoner, while vacant
space is only 0.1 sq.m. If the SIZO and IVS prison population remains at the current level
(and it is growing steadily), to provide prisoners with the new norm of living space by
1998 (as the Law envisages) would require about 4 billion rubles from the federal budget
only to build new and reconstruct old SIZOs and IVSs. Complete financing of all the Law's innovations
would increase the sum of necessary resources to the level which can be compared with the
annual federal budget.
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General
information about the Law