Elena Shakhova: “There have been attempts to humanise the foreign agents law, but they have led to nothing good”

Published by Vladimir Shvedov at 27/01/2022

Photo: Nadezhda Kiseleva

Elena Shakhova is the Chair of Citizens’ Watch, a human rights NGO in St. Petersburg, and a Board Member of the EU-Russia Civil Society Forum. In a special interview for Legal Dialogue, Elena speaks to journalist Vladimir Shvedov about the situation with human rights in places of detention in Russia and how the pandemic has changed things and discusses a highly sensitive issue for Russian civil society today, the law on “foreign agents.”

The COVID-19 pandemic has negatively affected human rights, especially in closed institutions such as places of detention. What has been the situation with human rights in places of detention in Russia during this pandemic?

Since the start of this pandemic, people in places of deprivation of liberty have seen their rights curtailed due to concerns over the spread of the virus. Tougher restrictions were introduced in all types of facilities, including correctional colonies for convicted prisoners, pre-trial detention centers, psychiatric hospitals where people undergo compulsory treatment, and many other types of institutions.

What are these restrictions? They include, for example, suspension of family visits – both long-term and short-term. Many facilities restrict access for lawyers. For example, immigrants held in the Center for Temporary Detention of Foreign Nationals in St. Petersburg were denied access to their lawyers for almost 18 months and only recently allowed lawyer visits. But family visits are still prohibited because the facility does not have a space properly equipped with a table having a glass partition for infection safety. There is no intention to equip such meeting rooms because no budget is available or planned for this.

By law, a person can be held in the Center for a few months, but many people were detained there much longer – for six and more months – during the pandemic, because the Ministry of Internal Affairs does not have a budget to pay for PCR tests. When someone is deported from Russia, the airline requires a PCR test. Imagine a situation where someone held at the Center has no money and no family [in Russia] – who will pay for their PCR test? They could only wait for a lucky chance, such as having their PCR test funded by their diaspora. At the moment, the problem appears to be resolved and funds earmarked for this. There were also delays due to disrupted transport connections, so even people from Ukraine and Belarus were unable to go back home until human rights activists in their countries intervened.

Another thing which many closed institutions restricted were parcels with food and necessities: most of the time during the pandemic, the receipt of parcels for inmates either was stopped altogether or the list of permitted items was limited, e. g. to only dry crackers and essential hygiene products.

Outdoor walks were restricted in some places, e.g. in psychiatric facilities, because they did not have separate courtyards for smaller groups of people. And since there are no “proper” courtyards, no one gets to exercise outdoors.

Some members of PMCs (Public Monitoring Commissions) had problems with getting access to closed institutions. While this was not the case in St. Petersburg where I am a PMC member, it was reported in many other regions. Sometimes, PMC members faced unreasonable demands from institutions’ administrations, such as to get tested at their personal expense before every visit.

This situation is typical of some developed democracies as well, not just Russia. Therefore, international bodies such as the OSCE, the UN Committee against Torture and the WHO have developed guidelines on protecting the rights of people in closed institutions while combating the spread of the virus.

Citizens’ Watch has urged to vote against a bill proposed by the Ministry of Justice which would excessively restricts inmates’ rights during epidemics and riots ¹The bill proposed by the Ministry of Justice amends article 85 of Russia’s Penal Executive Code (PEC) by adding grounds for imposing an emergency “special conditions” regime in prisons thus further restricting inmates’ rights. Currently, article 85 of the PEC permits imposing an emergency regime for reasons such as a natural disaster, a declared state of emergency, in wartime, during riots or group disobedience of prisoners. According to the new amendments, a “special conditions” regime may also be introduced in the event of hostage-taking, terrorist attacks or a threat of an armed attack against the correctional facility. Other grounds warranting this regime would be the announcement of a high alert, emergency or quarantine due to a pandemic, epidemic or epizootic. According to the bill’s explanatory note, different restrictions would be warranted depending on the reason for the emergency regime: during quarantine and high alert prisoners would be denied visits, parcels (including writing materials), outdoor exercise, moving without an escort within the facilities and exiting the facilities for any reason. In other cases, inmates would be additionally restricted from correspondence, watching television, etc.. Please explain why this is indeed an excessive and discriminatory measure and whether anything can still be done to reverse it.

There is no doubt that viruses can spread faster in the crowded prison conditions. But instead of following the international guidelines, the Russian authorities responded with making this legislative proposal. It is noteworthy that the required public consultations on the bill were announced right before public holidays and lasted for ten days.

The bill lists quarantine as one of the grounds for introducing the “special conditions” regime, thus effectively legalising the emergency measures which were randomly imposed during the first waves of the coronavirus.

Can we say that the bill seeks to consolidate the practices that have been used situationally during the pandemic?

Formally, yes. But effectively, the administrations of closed institutions would be granted discretion in imposing severe restrictions, such as prohibiting inmates from buying food, meeting with their lawyers and families, receiving food parcels, exercising outdoors, using the telephone, watching TV and listening to the radio, and buying books. The end result would be total isolation. Let us suppose there is a riot in a penal colony. The administration announces quarantine, because someone “accidentally” tested positive for coronavirus; then all phone calls and visits from lawyers would be prohibited, barring not only the virus but any information about the riot from going outside; then a couple of weeks later the emergency regime would be lifted but all traces of the events would have disappeared.

During the pandemic, we faced huge difficulties getting information about the current regime in closed institutions. This information is essential not only for human rights defenders but for ordinary people. Just imagine travelling a long distance to visit a family member in prison only to find that visits are prohibited. There may be a separate problem of restrictions being introduced but not disclosed to the public.

The time for public consultations on the bill is over. What can be done now?

Several thousand people voted against this bill. A number of human rights NGOs, including Citizens’ Watch, made negative comments on the draft. But I expect the bill to go through smoothly and become law anyway.

Then, I believe, its application will not be limited to public health emergencies, but it will be broadly enforced to make life even harder for people in places of detention.

Do you think that putting this bill on the fast track has something to do with the numerous recent reports presenting evidence of cruelty and systemic violence in Russian prisons?

No, I do not think these things are in any way related – rather, it is a coincidence. The restrictions have been prompted by the pandemic.

Then perhaps the publication of such reports may serve as an argument against the restrictions because they may facilitate violence? Do you think this could lead to change?

I do believe that change is inevitable, but the question is when. The reason why we now see more publications about violence or riots in prisons is not because there are more such incidents but because we live in information society. Thanks to the internet, we know what is going on in prisons. But the Federal Penitentiary Service (FSIN) cannot take credit for this publicity, because it has always been and remains a secretive agency.

Are people protesting more?

I do not think that protests have been more numerous, nor do I think that anything has changed in the way FSIN operates. It’s just a matter of a lot of information leaks.

Recently, some FSIN employees have been speaking up and leaking information.

So, an awakening of conscience and humanism in the Federal Penitentiary Service is possible?

Rather, I believe it is due to fatigue – both of the system and the people who run it.

My NGO has been around for a very long time, and we have been observing the trend. Since the law on the PMC was adopted ²Federal Law of 10 July 2008 No 76-FZ, on Public Monitoring of Human Rights in Places of Detention and on Assistance to Detainees, we have always delegated our representatives to this body. I am on the current PMC, although it was nothing short of a miracle for me to be admitted, because Citizens’ Watch was declared a “foreign agent” back in 2014. I was able to join the PMC only because another organisation nominated me.

Having engaged with FSIN staff for so many years, I can now see that although the system has not changed, there have been some changes in its people. Based on conversations I sometimes have with people working for FSIN, some of them have clearly developed a sort of awareness.

But I would not describe it as genuine humanisation. The current trend does not reflect any systemic change in FSIN but perhaps the overall advancement and humanisation of society. However bad things may appear to us today, we no longer have “troikas” ³“NKVD Troikas” were extrajudicial bodies set up by the People’s Commissariat of Internal Affairs (NKVD) to repress “anti-Soviet elements.” They operated between August 1937 and November 1938. A “troika” included the head of the local NKVD division, the secretary of the local Communist Party Committee, and the prosecutor. and people are not getting summarily executed in basements or having their nails torn out [as in Stalin’s time].

Does it make sense for prisoners to protest? It appears sometimes that their protests do not reach any goals but only result in tougher prison conditions and new criminal charges.

I still believe that protests make sense. It is important to stand up for your rights and this can turn into a riot when people can no longer tolerate the abuse.

Indeed, there have been numerous “mild” cases where prisoners protested against violations and things changed as a result. Filing complaints is important, especially now since the introduction of the so-called compensatory mechanism: a new law adopted eighteen months ago requires inmates first to seek compensation from Russian courts for inadequate detention conditions before taking the case to the European Court of Human Rights (ECtHR).

Having analysed Russian courts’ decisions on claims of compensation for inadequate detention conditions, we made an important finding: where the plaintiff can prove in court that they have complained about the poor detention conditions to the prosecutor’s office and other authorities who then carried out inquiries into their complaints, this works for the plaintiff’s advantage. Where additional evidence of poor conditions is available, their chances of winning are higher – although the amounts of compensation awarded by Russian courts are in the order of tens of thousands of rubles, which is much lower than compensations awarded by the ECtHR.

I will share an example of a not-so-terrible prison riot. It occurred in SIZO No.1 in St. Petersburg – the largest pre-trial detention center in Europe for 4,000 people. Last summer was extremely hot, and with the windows sealed tight and doors shut, the atmosphere in the cells was suffocating. A group of detainees removed a portion of the window to get some ventilation. The floor duty officer reprimanded them, but the detainees refused to put the window back in, and after a while security guards came over. They beat two detainees, moved the inmates to different cells and sent the most active ones to a punishment cell.

Rumors about this incident spread quickly throughout the SIZO, and at night, detainees began to shout out of the windows, “Guards are beating the inmates!” – and setting fire to mattresses before throwing them out. A passer-by who happened to be walking down the street outside the SIZO filmed this on his phone and posted it on the internet. Both the SIZO and the Federal Penitentiary Service even now refuse to admit that it was a prison riot but insist that the detainees were overreacting to a football match they were watching on TV. But I talked to some detainees who confirmed that a couple of days after the incident, they were allowed to remove parts of the windows, to use fans and to keep the food slots in the cell doors open for better ventilation.

Things changed for the detainees, although it came at a price. The SIZO administration tried to hide the two guys who got beaten, but we were able to find them. They were allowed to return to the regular cell and, as far as we know, suffered no further repression.

A very different example was the terrible prison riot in Angarsk where the inmates protested against severe violence and beatings by guards. I hope those responsible for the abuse will be brought to justice – there is a good team of lawyers working on the case.

How true is the common assumption that some FSIN facilities are very different from others? People say that in some regions prison rules are very strict and inmates suffer horrible abuse, while in others, the situation in penal colonies is relatively peaceful.

This is true. The situation [in the penitentiary] depends largely on the local prison administrations. We have seen penal colonies with very bad directors and a lot of violence and abuse. The most terrible prisons do not allow inmate complaints to go outside, so there are no formal grievances from inmates.

But we have also seen dramatic changes happening in front of our eyes once the prison administration changed and better people took charge. Sadly, the reverse can also be the case. Prison staff tend to follow the lead of the boss.

What do you think of the PMCs and their work? There is a widespread opinion that with each new iteration of PMC membership, their work increasingly becomes decorative and finding a common language with FSIN gets more difficult.

I would not say that finding a common language with FSIN is getting more difficult for PMCs, because there has never been such a thing as a common language between them. We receive formal responses from FSIN, but they never take substantive measures. In a typical case, we could write to them reporting prisoner rights violations only to receive a response a month later stating that an internal inquiry has found no violations. We recently requested the video footage from our visits to IK-6 and SIZO-1 in St. Petersburg, but the request was denied. This happens often, while our appeals and complaints often take years.

Another aspect is the PMC membership. What kind of people serve on them, how many are human rights defenders – or even active at all? Very often, just five or six of the forty PMC members travel to visit closed institutions, and the rest do nothing but simply take up space on the commission.

Is there any value in the PMCs the way they are at the moment?

All I can say, if they are closed down tomorrow, things will get even worse. But of course, they could perform much better.

Is it true that prison healthcare does not really care about the health of prisoners? It is widely believed that quality care is out of the question there.

Recently, the situation has been particularly challenging due to the covid pandemic. Many inmates tested positive for COVID-19, and those who suffered from other serious diseases were not considered a priority and simply ignored.

Some inmates who sought our assistance had been scheduled for medical checkups or surgeries, but everything was cancelled due to the pandemic.

More generally, there are huge problems with healthcare in prisons, pre-trial detention centers and other closed institutions. Two basic principles of prison medicine are not respected in Russia: the principle of equivalence by which prisoners must be provided with the same amount and quality of healthcare as the general public, and the principle of continuity by which the healthcare providers in prison should be informed of the prisoner’s prior medical history and then, in turn, share this information with healthcare providers in the community after the prisoner’s release.

Plus, there are multiple related challenges with the availability of hospitals, transportation and skilled medical staff. We keep hearing from inmates living with HIV that the only time they were seen by an infectious disease specialist was at admission to the penal facility, although they need regular medical attention and continuous treatment. Every person with HIV that I met in prison reported some health problem or another.

It is also believed that places of incarceration are particularly affected by the coronavirus, because people live in crowded spaces and safety measures are not observed.

Indeed, the covid pandemic has heavily affected closed institutions. I cannot even say precisely how much because the situation is extremely non-transparent and very little information is available. I have heard from many people that they may have been sick with COVID-19 in a mild form but never got tested. We have also received complaints from family members about incarcerated relatives who were very ill but were not receiving medical assistance.

There is almost no official information available, except for a couple of reports form FSIN in 2020.

We have submitted inquiries about the number of patients diagnosed and any measures taken. But the response inevitably was, thanks for your inquiry, all legally prescribed measures are being taken. It is as if no one is allowed to know what is going on in prisons, because FSIN, for some reason, believes any disclosure to pose a security threat for them.

What does Citizens’ Watch do on a day-to-day basis?

Generally, it is typical human rights activity. We have a legal counselling service helping people with a variety of human rights-related issues. At the moment, we are helping with a case of access to archival information. We also have a project to protect the rights of prisoners, and it covers a range of issues such as torture, prison healthcare, PMC work, access to justice and appeals against poor conditions of detention.

One of the themes we work on is combating racial discrimination. We offer legal assistance to victims of hate crime. We observe trials and raise awareness, because, e.g., an anti-Semitic attack on a Jewish cemetery is unlikely to attract significant public attention and almost no one will write about it. We monitor related court proceedings for compliance with the international standards of justice, publish reports of our findings and use them in our activities. In addition to this, we engage in advocacy at the international level and submit reports to the UN Committee on the Elimination of Racial Discrimination.

We monitor the mass media coverage of this type of trials. One example was a terrorist attack in the St. Petersburg Metro a few years ago, the subsequent trial and sentences. We did not only monitor the trial but also its coverage by the mass media, because the accused individuals included members of ethnic minorities, and some media reports encouraged discrimination and denied the presumption of innocence in respect of them.

We have put in place a program for monitoring trials of public significance, in particular those involving human rights defense, election violations, trial by jury, and administrative charges against civic activists.

You were one of the first organisations in Russia to be labelled a “foreign agent.” Why did this happen? Have you tried to challenge this status? Has there been any progress over the last seven years?

I was able to view the findings from that prosecutorial check, therefore I know the reason why we were labelled a “foreign agent” NGO. I saw a letter in the case file from someone who reported our organisation to the authorities for our involvement in the case of Roman Zakharov v. Russia. This case brought to the European Court of Human Rights by a friend of mine, journalist Roman Zakharov, concerned SORM (the system of technical facilities enabling operational-search activities). Zakharov challenged the absence of judicial oversight over the FSB’s secret interception of mobile-telephone communications. The letter reporting us to the authorities said that Citizens’ Watch was receiving foreign funding and included a screenshot from our website showing that we were involved in Zakharov’s case. The authorities carried out a check on us and concluded that our NGO was a foreign agent.

We faced many more checks while trying – unsuccessfully – to challenge the “foreign agent” status in a Russian court, and then took our case to the ECtHR. Actually, we had applied to the ECtHR even before our NGO was declared a “foreign agent.” We took the matter to the Court in February 2013 as part of a group of 11 NGOs. We were not “foreign agents” at the time but strongly believed that the very existence of this law was a violation of our rights. Eventually, almost all these NGOs were labelled “foreign agents,” of course.

Of course, I am for the total abolition of the law. There have been attempts to humanise it, but they have led to nothing good, and things only got worse.

The campaign for amending the law started after many media outlets were included in the foreign agents register. The idea was to amend or abolish those provisions which concerned the mass media, not everyone else.

They did not forget about NGOs – they simply never thought of us. Earlier, many non-governmental organisations had appealed to the mass media, “Guys, please help us! We need public support! Only you can give us a voice.” Sadly, there was no response, and we are all reaping the consequences now.

I believe that the law must be totally abolished. There is nothing there worth amending. And then all organisations, citizens and initiative groups affected by this law should, as a minimum, receive an official apology from the government.

We all understand that it would take long and persistent effort to reform the penitentiary system in Russia. But do you think it may be possible to take certain steps in today’s challenging circumstances to improve the lives of people in penal colonies and prisons now?

Such steps should begin with the training of future FSIN employees. The curricula of FSIN training centers should address the human rights standards, and the training should be delivered by civilians, not by retired officers who have served in FSIN for 20 years and are now indoctrinating the young personnel in obsolete Soviet practices. PMC members should have more authority, while the government agencies should be required to respond to PMCs’ observations and recommendations. PMCs also need to be reformed, because the current system of selecting their members is extremely non-transparent and allows admitting those whose only role is to take the place of active human rights defenders. In addition to this, the discriminatory rule whereby “foreign agent” organisations are not allowed to nominate representatives to a PMC must be abolished. We intend to challenge this rule in the Constitutional Court.

There should be criminal liability for torture as a separate offence, which is not currently in the Russian law. Today, torture is prosecuted under “abuse of official powers” – as if torturing someone is an official power that can be abused.

This is just the beginning of what needs to be done, and it will require a large-scale reform of the entire FSIN system. Some changes have been announced, such as plans to set up large centers to accommodate both pre-trial detention and correctional facilities. I am not sure whether this will work, and no specific details have been given. The internal regulations will change, but I am not sure – and no one can guarantee – that these would be positive changes.

We can see the same problem here as everywhere else – a lack of transparency in decision-making.

Let’s go back to the bill we started with. The authorities have introduced, lifted, and then reintroduced pandemic-related restrictions. Do you expect that inmates in closed institutions will ever again enjoy even the limited level of freedom they used to have before the pandemic? Or do you believe that the restrictions are a new reality that is here to stay?

It depends on whether this is the last such pandemic for humanity and on when it is going to end. I have a feeling that there could be more pandemics, and then restrictions will be imposed again.

But I believe there will be some easing of restrictions. Some institutions lifted certain restrictions after the second wave of the pandemic, e.g. by allowing food parcels and visits for two months, before the third wave occurred and these were prohibited once again.

But I am afraid that under the new law, introducing, lifting and reintroducing restrictions would be perceived as too cumbersome for bureaucratic reasons, so the administration might decide to restrict everything permanently to save themselves the hassle.

Is there anything to be done about it?

The public consultations are over, and we do not have any possibility of influencing the State Duma and the Federal Assembly, because there are no political forces there to raise this issue.

The only thing left for us is to do is to continue campaigning to raise public awareness of how bad things could turn out. Recently in Russia, we have seen public campaigns really work – not always, but some of the time. As a result of public pressure, at least some rank-and-file prison personnel have been brought to justice for torture.

Being vocal about the problems can help shift the situation in the right direction, even if a little bit. If we fail even to try, why live?