Russia's prison dilemma

As the Russian penitentiary system considers its first major reforms in 20 years, human rights advocates don't like what they see

On July 16, Russia’s Council on Human Rights reported that pretrial detention centers in Moscow, the Moscow suburbs, and St. Petersburg currently house twice the number of people they have the capacity to detain. Experts have argued that Russia’s pretrial detention facilities, including jail cells for suspects under investigation and preliminary holding areas, are the most dysfunctional part of the country’s penitentiary system, and that recognition has led to a drive for reform. Gennady Korienko, the head of Russia’s Federal Penitentiary Service (FSIN), and Mikhail Fedotov, who chairs the country’s Council on Human Rights, have already sent a series of proposals on the matter to President Vladimir Putin. Those proposals would mark the first significant nationwide changes to Russia’s jail and prison system in more than 20 years. Meduza asked three top Russian human rights advocates to give their take on the proposed reforms. They told us that some of the new policies would make conditions for suspects, defendants, and convicts in Russia even worse than they already are.

The Russian penitentiary system was last reformed in 1998, and many of this year’s reform proposals have been on the table before.

The broadest prison reforms implemented in modern Russian history were approved in 1998. The agency that ran the country’s prison system, then called the Central Correctional Department, was transferred from the Internal Affairs Ministry, which houses Russia’s police force, to the Justice Ministry. That change was mandated by Russia’s participation in the Council of Europe, which it joined in 1996.

Since 1998, however, Russia’s prison reforms have all been more or less cosmetic. They have consisted primarily of small-scale innovations designed to make life a little easier for convicts, defendants, and their families. For example, an electronic messaging service for pretrial detention centers and prison colonies was installed at the end of 2008. In early 2010, FSIN also developed an online service for sending care packages to prisoners from a limited catalogue.

Also in 2010, placing defendants under house arrest to await trial rather than jailing them became a far more widespread practice in Russian courts. The country’s Codex of Criminal Procedure has allowed for house arrest since 2002, but courts very seldom took advantage of that provision for its first eight years in existence. In the early 2010s, FSIN responded to the increasing rates of house arrest by implement minor reforms that increased its purchases of electronic tracking bracelets. However, the agency’s practice of buying up bracelets at inflated prices ultimately led to the prosecution and sentencing of former FSIN chair Alexander Reimer.

Most recently, prison reforms became a topic of discussion in Russia once again after a video was leaked in the summer of 2018 that showed guards torturing a prisoner in Yaroslavl’s Prison Colony No. 1. The video triggered widespread public outrage. At the time, Federation Council Chairperson Valentina Matvienko suggested dividing FSIN into two agencies, one of which would handle “control and security” in the Russian prison system while the other took charge of “reeducation and socialization.” The newspaper RBC reported that officials were considering a merger among FSIN, the Internal Affairs Ministry, the FSB, and the Russian National Guard. For its own part, FSIN announced that it had purchased additional security cameras for its correctional facilities following the Yaroslavl video leak. In September of 2018, FSIN Vice Chair Valery Maximenko also said the agency had purchased new body cameras for its jail and prison guards.

Those moves were not enough to trigger widespread structural reform at FSIN. Nonetheless, they did initiate new conversations about individual parts of the Russian penitentiary system, especially those related to pretrial detention. In a December 2018 hearing, for example, the Council on Human Rights, which reports directly to Russia’s president, included both the Yaroslavl video and Russia’s pretrial detention system on its agenda. During the hearing, councilmember Ekaterina Vinokurova asked Vladimir Putin to restore the councilmembers’ right to visit pretrial holding cells; that right is currently available to civilians only if they work for the Social Monitoring Commission (ONK), which is housed within FSIN. “If FSIN objects, Mr. Putin, please keep in mind that they just want to torture people with impunity and without oversight. Please, restore this right to us,” Vinokurova urged at the time. In February of 2019, Putin followed up on the December hearing by ordering FSIN and the Council on Human Rights to present him with reform proposals for Russia’s pretrial detention system by July 1.

Earlier this summer, that order was fulfilled. Nonetheless, some of the ideas Putin received from FSIN Chair Gennady Kornienko and Council of Human Rights Chair Mikhail Fedotov were not new. They proposed a legislative ban on overcrowded pretrial detention centers, a measure that was already proposed in 2015 to no effect. They also suggested deporting non-Russian citizens who commit misdemeanors, as FSIN had already recommended in 2016 — also to no effect.

Eva Merkacheva, a member of the Council on Human Rights, announced during a July 16 press conference that the presidential advisory body had “sent its recommendations to FSIN,” adding, “This is a historical moment for us because our suggestions were heard.” According to Merkacheva, the number of people held in Russia’s pretrial detention centers is declining (that figure is currently near 100,000, less than the system’s total capacity of about 128,000 people). However, in some facilities in Moscow, the Moscow suburbs, and St. Petersburg, an area of just 2.3 square meters (24.76 square feet) on average houses each inmate even though Russian regulatory norms require a minimum of four square meters (43.06 square feet).

Some of this year’s proposals are new, but human rights advocates are against nearly all of them.

The document FSIN and the Council on Human Rights submitted to Vladimir Putin has not been published in full, but its contents have been described in media reports, including journalist and Human Rights councilmember Eva Merkacheva’s lengthy description of the two bodies’ recommendations. Those reports indicate that there are seven recommendations in total on the table. We asked three Russian human rights experts to tell us what they think of each one.

Proposal 1: Give pretrial detention center wardens the choice not to detain arrestees if more detention would cause overcrowding.

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Wardens would have the right not to accept new detainees if their facilities are already overcrowded. Courts would be required to take the available capacity of detention facilities into account when deciding how a defendant should await trial according to a new statute in the Codex of Criminal Procedure. Exceptions would be available for defendants in felony cases.

Alexander Kholodov is the chair of St. Petersburg’s local Social Monitoring Commission (ONK). When asked about this first reform proposal, he recalled, “I once talked to a former warden of the Kresty [detention in St. Petersburg] who worked there in the 1990s. He told me how many people they held there — 20,000 or 25,000. There were 999 cells in the old Kresty building, which means you had 20 – 25 people living in eight square meters (86.1 square feet) [in a single cell]. I just couldn’t even imagine that. I still think sometimes about whether I misheard or whether there really was that much overcrowding.” Kholodov said he is certain that the government’s new anti-overcrowding proposal had been “simmering” for a long time but added that it could have unintended consequences: “Think about it. We’d be deciding whether to put somebody in jail or not depending on whether there’s room in the detention center.”

Irina Biryukova, an attorney for the human rights foundation Public Verdict, argued that if wardens gain the ability not to jail certain individuals, “an incentive for corruption will develop because they’ll always find ways to detain people if they want to.” She explained, “It would be the prison wardens themselves who provide reports on the number of people detained, and they would decide whether there’s overcrowding or not. I think corruption would occur both in the upper levels of individual FSIN divisions and among prosecutors.”

Alexey Sokolov, the director of the Yekaterinburg human rights association Legal Basis, added that the proposal contains “slippery language about the fact that this doesn’t apply to defendants in felony cases. In that case, law enforcement officials would intensify the charges they assign in order to enable the defendant to be put in jail.” Nonetheless, Sokolov said the proposal is “very good, very positive” overall. “This isn’t a panacea. The panacea would be for courts not to put people in pretrial detention just because that’s what the investigator wants,” he explained.

Proposal 2: Take no more than six months to consider appeals of criminal sentences.

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Current Russian law only includes deadlines for submitting appeals and setting court dates to consider them. The new proposal would limit the actual consideration of appeals to six months; that deadline could only be extended by a court decision in exceptional cases. The proposal is intended to limit the amount of time defendants spend in pretrial detention centers after they have already been sentenced.

Alexander Kholodov of the St. Petersburg ONK noted that Russian prison colonies currently have excess capacity even though the country’s pretrial detention centers are often overcrowded. He added that many defendants prefer to stay in pretrial detention for as long as possible even though conditions in prison camps are typically better. “The folks who are sentenced under statutes where a day in pretrial detention counts [when determining time served] as one and a half [days in prison] are no fools. I’ve seen cases where people intentionally protracted their time in detention and wrote new complaints day and night in hopes of spending less time in prison later.”

Irina Biryukova, meanwhile, said she was wary of the possibility that appellate courts facing a new deadline would avoid considering complex cases in detail. “There are multi-volume, multi-episode cases that can take an appellate court longer [than half a year] to consider. Even now, courts don’t dive too deep into appellate cases, and if they have a sword hanging over their heads, they’ll just start speeding through these complex, multi-episode cases faster so they aren’t reprimanded for violating the deadline,” she warned. Biryukova is certain that the proposed deadline would decrease the number of defendants whose charges are dropped on appeal.

Alexey Sokolov of Legal Basis added that there is no mandate that forces defendants to remain in pretrial detention while their appeals are considered. Russian law allows courts to place them under house arrest or even release them under certain conditions (a curfew, limited travel, etc.). “But the only time that has happened here was with [opposition politician] Alexey Navalny,” Sokolov noted. “He was convicted in the Kirovles case, jailed, and released that same day through that provision, which nobody had ever applied in any case until then. If that provision [allowing defendents to be released temporarily during the appeal process] were applied to everyone and not just to Navalny, then pretrial detention centers wouldn’t be full of appellate petitioners who haven’t really been convicted yet but who already have a sentence.”

Proposal 3: Implement a ban against sending defendants to pretrial detention centers if they have a disability, if they are pregnant, or if they are a woman with children under three years old.

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This recommendation would ban detaining suspects and defendants if they have a Category I or II disability (the most severe categories in Russian law), if they are pregnant, or if they are a woman with children less than three years old. It contains exceptions for those accused of felonies or who are deemed to have a high likelihood of recidivism.

Biryukova observed that individuals who match these descriptions “aren’t usually jailed as it is, of course.” She said exceptions to that norm have typically been made only in extreme cases. “And we could have more people with disabilities appearing in this country [under this proposal], especially among criminal defendants,” she added ironically. “We know that you can receive a disability certification here for conditions that are not visible to others. So there will be an incentive for corruption for doctors who decide whether somebody should be recognized as disabled or not.”

Proposal 4: Deport foreign citizens convicted of minor crimes.

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This proposal would introduce a new sentencing option for non-Russian citizens: permanent deportation. Its supporters note that most non-Russian citizens convicted in Russia are citizens of countries within the Commonwealth of Independent States and that most of them are convicted only of misdemeanors.

Alexander Kholodov agreed that Russian pretrial detention centers really do have a problem where non-Russian citizens are concerned. “Everyone’s tired of having a ton of Uzbeks behind bars for some nonsense,” he said. However, the St. Petersburg monitor added that he doesn’t believe deportation without additional punishment is the right path to take either. “What’s that supposed to mean — he stole a jacket, so we’re sending him home?”

“There’s a bit of an internal contradiction here,” Irina Biryukova asserted. “A sentence happens after the defendant receives a final conviction. So what does pretrial detention have to do with this? People are held in pretrial detention before they are sentenced and while they appeal. If they want a foreign citizen who has committed a crime to be deported immediately, without an investigation or a trial, that would be completely out of line because it’s the court and the legal sentence that are supposed to determine whether somebody is guilty or not.” The human rights attorney noted that if extrajudicial deportation of foreign citizens becomes common practice in Russia, then crimes committed by non-Russian citizens will be investigated extremely poorly: “Instead of prosecuting someone for a crime, [law enforcement officials] could just take a bribe to avoid having to prosecute them. That person might find it simpler to buy them out so they don’t kick him out.”

Alexey Sokolov also disapproves of deportation as a method to decrease overcrowding in detention centers. “It’s like the gold rush! You come into the country, you commit a crime, and you even get a ride home.” That said, Sokolov did admit that deportation might be an effective way to punish misdemeanors.

Under current law, all foreign citizens who are convicted in Russia are presented with a notice recommending that they leave the country after they serve their sentences. “They’re pushed out one way or another in any case, so I don’t see a need to introduce another regulation,” Irina Biryukova concluded.

Proposal 5: Move detainees from pretrial detention centers to temporary holding centers.

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Currently, suspects and defendants in criminal cases can be transferred from pretrial detention centers to temporary holding centers for interrogations, searches, or tests for no more than 10 days per month. FSIN and the Council on Human Rights propose increasing that number to 20.

Increasing the time suspects and defendants can spend in temporary holding centers per month could, in theory, decrease overcrowding in pretrial detention centers. However, it would come at the cost of the well-being of those individuals, including some people who have not even been charged with a crime. Temporary holding centers are not controlled by FSIN; they are run by the Russian police. In those holding centers, police have more opportunities to put pressure on those they have in custody. “There are rooms they call ‘press huts’ where a specially selected team is chosen to deal with a ‘client,’ as they say, and they pull whatever testimony the investigators need out of that ‘client,’” Sokolov explained. “In pretrial detention centers, it’s getting harder and harder to do that, but in the police’s holding centers, they can work on a ‘client’ for several days straight. If they can hold [defendants transferred from pretrial detention] for 20 days, then they can work on people who have been arrested [but not yet charged] for 48 hours while they’re still suspects and the case is still being developed.” Forty-eight hours is the legal limit on the amount of time Russian police can hold an individual who has not been charged with a crime.

Irina Biryukova noted that increasing the amount of time defendants spend outside of Russian jails is unlikely to make them less crowded. “When someone is transferred to a temporary holding center, their place in pretrial detention is still held for them,” she explained.

Proposal 6: Transfer defendants who are waiting for appeals in overcrowded detention centers to other regions of Russia.

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If someone has already been sentenced, and they are simply waiting for an appeal process to be completed in a pretrial detention center that is already overcrowded, this proposal would enable that person to be transferred to a different detention center, including those located in other regions of Russia.

In response to this proposal, Alexander Kholodov pointed out that defendants have the right to be present during their appellate court hearings. “And what if they’re transferred to a different region? Will they just be tossed back and forth? I would propose transferring them closer to where their sentence would be served if they’re willing to give up their right to be personally present in court or [when] it’s possible for them to be present through a video call,” he said. “If the conviction is upheld, the person would stay where they are, and if it’s not, they would go free, but those are rare exceptions: fewer than one percent of sentences are overturned [on appeal in Russia].”

Alexey Sokolov is categorically opposed both to FSIN’s proposal and to Kholodov’s idea of transferring defendants to the place where they would serve their sentences until their appeal is reviewed. “We’re actually fighting for people not to be transferred to other regions. That deprives them of their social ties. If somebody’s moved from Moscow to the Far East, how can their relatives visit them? It’s an inhumane regulation. It would only cause more brutality toward prisoners.”

Proposal 7: Don’t detain people accused of crimes that are not punishable by five years or more in prison.

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This one’s self-explanatory: if a defendant cannot be sentenced to five years or more behind bars, they wouldn’t be jailed to await trial. There is one exception, however. Defendants who have been to court before might be locked up anyway.

Irina Biryukova called this proposal unwise and unrealistic. She said it is unrealistic because investigators can decide whether certain charges should be prosecuted as misdemeanors or felonies. They can also decide whether a felony should be considered severe or not. In short, they could choose to call a given crime severe to achieve a higher possible sentence and cancel out the proposal’s intended result. “Second of all,” she added, “I would take into account the specific situation of the person being prosecuted. Let’s say that person has never been convicted before, but they’re in the registry for juvenile offenders, and prosecutors want to convict them for the first time because they’ve come of age. Or maybe the person has a ton of administrative citations for various things — disorderly conduct or something like that. Or the sentence is capped at five years, but the person in question is suspect, and there’s reason to keep that person out of the presence of other people. For example, in cases of domestic violence, where there’s a danger that if the person is not detained, then we could get even more serious consequences. I would raise the question of tying the way a defendant awaits trial to their specific situation and only then making a decision.”

Alexander Kholodov agreed that “If a court has correctly evaluated the threat a suspect poses to society, this point is unnecessary.” He explained, “If courts are not afraid to use house arrest [instead of detention] when possible, then 99 percent of people would be placed under house arrest, and only one percent would await trial in jail — those who present a real threat to society.”

The Russian edition of this report is part of a Meduza special project dedicated to resisting police brutality and reforming the Russian justice system. You can find other pieces from the project here.

Report by Anna Zhilova

Translation by Hilah Kohen