What does the law say?
Law No. 76 ‘On the Public Monitoring of the Protection of Human Rights in Places of Detention and Assistance to Persons in Places of Detention’ was formulated by human rights activists Valery Borshchyov and Andrey Babushkin in the 1990s and responded to a Council of Europe
The law allows members of organisations whose charter specifies protecting rights (up to two from each organisation) to submit an application to the Public Chamber to join a PMC through which members check that detainees have access to adequate food, space, medical facilities, and so on, and provide assistance to prison authorities in the enforcement of human rights. The Commissions have three main tasks: to perform inspections of detention facilities, prepare recommendations for improvement to the facility authorities and handle complaints by inmates. PMC members make inspections in pairs, and the cost of travel to the various facilities is covered by the NGO that put the member forward.
Importantly, the law requires PMC members to work with a string of government bodies: the prison authorities, with whom PMC members must discuss any immediate complaints and recommendations, as well as arrange visits; the regional administration which handles more serious complaints by the PMC regarding violations at the facility; the regional Public Chamber which organises training seminars and round tables and can be involved in the selection process; and the human rights ombudsman, who provides material and other support.
On the surface, it sounds like a much-needed breath of air into Russia’s historically closed and severe prison system. But, as with other similar monitory bodies, their structure and selection process favour compliant individuals, and NGOs are only allowed to perform public scrutiny if they are members of these Commissions. State control over membership is, albeit somewhat obliquely, retained by the fact that the Public Chamber, a third of whose members are directly chosen by the President, must approve applicants. Furthermore, the kind of close and often integrated work with government bodies required by the PMC work means, first, that it is in the Public Chamber’s interests to select members with whom they know the authorities can work well and, second, that it becomes much more difficult for PMC members to take a critical position on conditions inside detention facilities.
A testament to its controversial place in Russian legislation, law No. 76 has barely been left untouched since it was passed. In 2011, the term of service in PMCs was increased from two to three years, and the maximum number of PMC members was raised from 20 to 40. Another change has been introduced for debate in the Duma which would allow religious organisations and political parties to be represented within PMCs, with its authors claiming that the inclusion of such figures will ‘increase the performance of public scrutiny.’ This is unlikely, as political parties and religious organisations are known for their close relationship to incumbent authorities. Rather, it will undoubtedly decrease the critical capacity of PMCs.
More Problems in the Law
Overall, there are a number of problems with the law as it stands. Firstly, and most importantly, there is no description of what is understood by a ‘human rights organisation’ – and most organisations claim to protect the rights of their members, be they the Interior Ministry advisory council (as in the case of Moscow PMC) or the society of law enforcement agency workers (as is the case in Samara PMC). As such, organisations which have at best a tangential relation to human rights work – and at worst, may actively hinder the protection of human rights in prisons – have been accepted into the Commissions. During the selection process of the second convocation, human rights activists were rejected in favour of members of organisations for veterans of law enforcement agencies, among which is the Federal Penitentiary Service, the very institution the PMCs are supposed to be monitoring.
Second, in one paragraph the law states that PMC members can turn up for an inspection without prior warning, but in another paragraph it contradicts itself and states that prior warning must be given before PMC members arrive at a detention centre for a spot check. According to this paragraph, a letter must be sent in advance stating the time of the visit, the intended goals and the full names of the inspectors. As a result different practices have developed in different regions, with some facilities demanding a whole day’s notice, thus giving authorities the chance to put things in order before the inspectors arrive.
Third, changes to the law made by the Duma and Federation Council removed the possibility for PMC members to talk to inmates without a member of prison staff present. This means it is now very difficult for inmates to lodge a complaint without fear of reprisal by prison guards afterwards. In the words of one St Petersburg PMC member, ‘Whichever inmate dares to tell of any crimes will pay for it later.’
Fourth, the fact that NGOs must cover the expenses of PMC members from their organisation means that those with few funds can take part. The most well-funded organisations tend to be Soviet-style organisations, such as veterans organisations and women’s groups from the Soviet era with close links to the government and will therefore be less likely to enact a critical public scrutiny of detention facilities.
Reactions by the Human Rights Community
When the law was passed, Borshchyov called it ‘very, very spoilt’. Then, in autumn 2010, after the second round of PMC members were selected, a group of activists from Memorial wrote a letter to the Public Chamber asking it to remember that ‘the spirit and sense of public scrutiny consist in defending the rights of people deprived of freedom, but not in guaranteeing membership in Public Commissions to the power structures that are supposed to be monitored.’
Last month, leader of NGO Gulagu.net and president of the ONK.RF council, Vladimir Osechkin, published an open later to the Public Chamber on his website signed by 143 colleagues, stating the following: ‘All of you, gentlemen, are adult and educated people. You have all read The Gulag Archipelago by Solzhenitsyn. And are you not ashamed that thanks to your inaction “former” law enforcement officers have joined and taken over power inside many PMCs in the regions, and there are constantly coming pseudo-reports and news of yet another murder, suicide, death of prisoners?’
In short, human rights activists feel that the potential for PMCs to perform independent monitoring of prisons and to hold detention centre authorities to account, has been undermined by the desire instead to create institutions that will endorse the status quo. PMCs, as they stand, permit a hybrid, state-controlled form of scrutiny, which is dependent on the energy and integrity of individual PMC members, rather than the institution itself.
Conclusion: A Bleak Prognosis for the Third Convocation
The forecast is not good for the next set of Public Monitoring Commissions. In Moscow and St Petersburg, Russia’s most liberal cities, only half of the current members belong to organisations broadly recognised as human rights groups. In the regions, where activists are fewer, the average salary is much lower and the distance between detention facilities can take days to traverse, most commissions are devoid of critical members. And in many places there are simply not enough people to do the job.
Furthermore, in recent months a witch-hunt for ‘political’ NGOs with funding from abroad has been instigated by the Kremlin, demanding they brand themselves as ‘foreign agents’. These organisations are generally the most out-spoken on rights issues and regional authorities have little choice but to distance themselves from co-operating with them. Who would want a ‘foreign agent’ in a government-sanctioned prison watchdog?
While it is a victory for the human rights movement that the possibility for the independent monitoring of prisons exists at all in Russia, their slow and painful evisceration is just another example of the increasingly strained relationship between the state and human rights activists in the country.