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Tatyana Moskalkova: A vicious circle in the system of justice. Why it is crucial to reform pretrial detention centres [Izvestiya]

posted 28 Nov 2016, 05:58 by Rights in Russia   [ updated 28 Nov 2016, 06:01 ]
17 November 2016

By Tatyana Moskalkova, human rights ombudsperson of the Russian Federation 

Source: Moscow Helsinki Group [original source: Izvestiya, 17.11.2016 

Photo: Moscow Helsinki Group

It's said that the legendary Russian lawyer Fyodor Nikiforovich Plevako was in the habit of starting his speeches in court with the following phrase: ”Gentlemen, it could be worse”. More than a century has passed since his death, the 21st century has already come of age, the climate has changed, the country is completely different to the way it was in his times, yet we find ourselves saying the very same thing as we face the future.

We have to repeat these words, indeed we can't describe the situation with any other words, given that we have inherited so many wrong rules from the past. For example, queueing. The infamous ‘queues for deficits’ have long disappeared but, crazy as it may seem, queues have formed in pretrial detention facilities where lawyers are forced to wait around for days in the hope of meeting their clients.

To this day, lawyers literally have to fight when they assert that those accused have a constitutional right to legal protection from the moment they are detained. No one seems to actually dispute this right, but it's almost like the old joke goes:

— Tell me, do I have the right?

— But of course you do! Don't worry, you do.

— So I can...

— No, you can't do that. But you have the right...

That's exactly what is happening in this case. The Federal Bar Association estimates that the low processing capacity of the majority of pretrial detention centres means that lawyers do not have the right conditions for working with their clients: the centres process 20 people a day at the most. They are simply not able to process any more than that. According to the Federal Bar Association’s data, the number of interview rooms in pretrial detention facilities does not correspond to the norms used when designing [new] detention centres and prisons. The norms introduced in 2001 stipulate that 250-place detention centres or prisons should have 15 interview rooms, 500-place facilities should have 30 interview rooms, 1000-place facilities should have 45, and 1500-place facilities should have 60. In practice, though, the situation is very poor: 'good' detention centres only have half as many interview rooms as the norms set out.

The reason is simple: the majority of prisons in Russian are old, so there is no provision for rooms in which lawyers can meet with their clients. Although each pretrial detention centre has now assigned a few rooms near the lawyers' rooms, there still aren't enough, as each lawyer needs to spend on average one or two hours with a client. Few detainees therefore manage to have a meeting with a lawyer.

It's not surprising that lawyers draw lots to decide the order for meetings with clients. Lawyers post lists on trees outside one detention facility in Moscow, and people keep watch on them around the clock. In effect, they are 'queueing'. Nor is it surprising that there are only five interview rooms, so it is rare that more than ten lawyers have the chance to talk to clients in one day. Demand, of course, stimulates supply, and so enterprising citizens have found a way of making money at some pretrial detention centres: they'll stand in line for people, and then sell their place in the queue.

The situation is further aggravated by the fact that the pre-trial detention facilities are packed to overflowing. As of 8 April 2016, Moscow’s remand centres housed 11,909 inmates, a figure which exceeds the maximum intended capacity by 47%. This is a result of the fact that the courts are not obliged by law to take into account the occupancy rates of the pre-trial facilities when making remand decisions.

The remand prisons also appear to suffer from a lack of junior inspectors available to accompany suspects and defendants to the offices of investigators and lawyers. This means that it can take a long time for lawyers to gain access to their clients – in some cases most of a working day, including a lunch break.

The problems faced in terms of gaining access to a lawyer from within pre-trial detention facilities represent an infringement of the constitutional right to a legal defence to which suspects are entitled from the time when they are taken into custody. Defence counsels find it difficult to access their clients despite making the necessary arrangements, and court-appointed lawyers sometimes abandon any attempt to visit defendants due to the problems involved in gaining access.

This leaves us in a vicious circle – a right is enshrined in law, but the exercise of this right is unfortunately rendered impossible.

And yet what is at stake is the fate of an individual and the question of their guilt or innocence.

What is the solution? The first task is to open new and modern pre-trial detention facilities. The second is to introduce and make wider use of electronic queuing systems, and the last is to remand fewer people in custody.

This point has been reiterated by President Vladimir Putin; “…ensuring that our criminal law provisions and system of punishment are as humane as possible is a matter of supreme importance to us. At present, minor and moderately severe crimes attract the same sanctions as serious crimes in practice. This does not make people commit fewer crimes – it merely embitters them. The current legislation already provides courts with the option of imposing fines and other more humane forms of punishment instead of imprisonment, but this option is rarely utilised. Provided there are grounds to do so, of course, I believe that courts should make wider use of non-custodial measures.”

Long-standing judicial experience has shown that travel restrictions or house arrest are entirely adequate measures for people who do not pose a risk to society. It goes without saying that the problem will not be resolved as quickly as might be desirable, but we have to start somewhere. As far as the lack of meeting rooms is concerned, the Bar Association has for many years proposed that special portacabins should be installed in prison yards at its own expense – a temporary measure, but one which is long overdue.

It is said that the level of civilisation of a society can be measured by the cleanliness of its toilets and the condition of its prisons. We’ve sorted out the toilets, but we’re still a long way from civilised detention facilities...

For fairness’ sake, it should be pointed out that although the majority of complaints about the conditions in detention facilities are addressed to representatives of the Federal Penitentiary Service, the senior executives of the latter have put the matter to the government repeatedly, in particular to the Ministry of Finance. The response is always the same: that there is no money.

It is true that there is no money and that we are in the middle of a crisis, but the problem still needs to be solved. Perhaps we won’t be able to solve it as quickly as we would like, but solve it we must, by any route possible – even the longest, provided we start with a single step.

Translated by Joanne Reynolds & Suzanne Eade Roberts