9 April 2021
The right to privacy is a very sensitive right for everyone. It protects the personal inviolability and privacy of personal life, family relations, inviolability of the home and correspondence. For a long time, the Soviet and then Russian society lived in conditions of devaluation of this right. The right to privacy was so limited that people seriously considered it the norm when their personal and family life was analyzed at public meetings, and personal data, letters, and other private information became public. In places of detention, the situation was even worse. Everyone has come to terms with the fact that people in prison can have no personal space or personal life at all, no personal and family secrets.
Sidorov’s claim and the court’s refusal
Maxim Sidorov is serving a sentence in IK-13 of the Federal Penitentiary Service of Russia in the Kaliningrad region. In August 2017, by the decision of the head of the institution, he was transferred to a strict regime. On 6 September, 2019, by the decision of the head of the institution, he was placed in a single chamber-type room (hereinafter referred to as the EPKT) and is still being held there at the time of publication. The room is equipped with a video surveillance camera, which is located so that its view covers the sleeping places and partially the toilet. The prisoner is constantly forced to experience a nervous, stressful state, as the toilet falls into the field of view of the camera. Sidorov feels similar feelings when changing clothes and when preparing to go to bed, since his sleeping place also falls into the field of view of the camera. Within 24 hours a day, the convicted person is under constant video recording by the employees of the Federal Penitentiary Service.
Under the above conditions, Maxim Sidorov was forced to file a lawsuit against the Federal Penitentiary Service of the Kaliningrad region and its division, correctional colony No. 13, in which he is serving his sentence from May 2016 to March 5, 2022. The prisoner demanded to stop video surveillance of him, collecting and storing information about him and to compensate for moral damage for violating the right to privacy.
Privacy from the point of view of standards is not only the privacy of the bathroom or toilet. This is also the possibility to have a different personal space and the possibility of privacy, for example, for changing clothes, washing personal belongings, and praying. The right to privacy in places of incarceration also includes contacts with relatives, telephone conversations, receiving parcels, and long and short visits.
The Kaliningrad court dismissed Sidorov’s claim on 15 February, 2021, referring to the fact that the employees of the institution did not violate national legislation and the places of privacy in the cells in which the convicted person served his sentence were not viewed.
In support of the decision, the court pointed out that the implementation of video surveillance and temporary storage of information does not violate the rights of the plaintiff, does not humiliate his human dignity and is not prohibited at the legislative level, is permissible and justified for the purposes of control and security.
Law No. 103-FZ allows video surveillance of people who are suspected and accused of committing crimes. These people, as a rule, are in a pre-trial detention center. Sidorov is not a suspect or accused, but a convicted person, and is not in an isolation cell, but in a colony. The provisions of this law do not apply to its content.
The order of the Ministry of Justice contains provisions on video surveillance systems, their engineering standards, etc. and does not establish methods, conditions or procedures for using cameras. Therefore, this order cannot serve as a justification for the refusal of the claim.
Constant video surveillance of Sidorov from the point of view of international law certainly violates the prisoner’s right to privacy, guaranteed to everyone by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The European Court of Human Rights interpreted this case in the similar case “Gorlov and Others v. Russia” (application no. 27057/06). In this case, the ECHR points out that round-the-clock surveillance violates Article 8 of the Convention.
Russian legislation practically does not provide guarantees against abuse of officials during video surveillance in a correctional institution, so the court’s argument about the compliance of the surveillance of Sidorov with Russian legislation, in our opinion, cannot be applied.
Instead, the court should be guided by an international norm, since, by virtue of Part 4 of Article 15 of the Constitution of the Russian Federation, the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. In this case, if an international treaty of Russia establishes rules other than those provided for by law, the rules of the international treaty shall apply. This provision of the Constitution corresponds to part 4 of Article 11 of the Civil Code of the Russian Federation, from which it follows that in case of non-compliance of the national law with international norms, the rules of international treaties of Russia apply. It states that in case of non-compliance of the national law with international norms, the rules of international treaties of Russia are applied.
Anastasia Shevchuk, a lawyer, represents Maxim Sidorov in the national courts of the Russian Federation:
— In substantiating its position, the Federal Penitentiary Service did not present any arguments in favor of the fact that Sidorov should be subjected to round-the-clock video surveillance, which means that the agency, presumably, proceeds from the fact that the entire life of a prisoner should be controlled by employees, which automatically deprives the prisoner of even a chance for privacy and privacy for the entire period of stay in locked rooms (SHIZO, PKT, EPKT).
For the above reasons, we believe that the decision of the Central District Court of Kaliningrad to refuse to satisfy the claim of Sidorov should be canceled, the claim should be satisfied.
Is it necessary to monitor prisoners and how often?
Video surveillance in places of incarceration is an important measure not only in terms of preventing suicides, conflicts of convicts, but also in terms of preventing arbitrary actions on the part of employees.
Co-chairman of NGO “Man and Law” Sergei Poduzov:
— There is nothing criminal in the fact of video surveillance of convicts, including for the security of the convicts themselves (see the case of Trubnikov v. Russia)
1. Such video surveillance must be justified and individually defined, if it is a question of surveillance in places of residence or permanent residence (pre-trial detention center cells, for example). That is, if there is reliable data or reasonable suspicion that a convicted person or a person in custody is preparing to commit a crime or commit self-harm, then surveillance is possible. It is also possible and even necessary to have video surveillance in public places of the correctional institutions and the pre-trial detention centers (walking courtyards, canteens, etc.).
2. The observation should be limited to a certain period of time. If the grounds for such surveillance have disappeared, the decision to introduce it should be reviewed (see Van der Graaf v. the Netherlands).
We agree that, to a reasonable extent, video surveillance in places of detention is necessary.
Our experience in researching the problem
In 2019, the Interregional non-governmental human rights organization “Man and Law”, together with partners, within the framework of the project “Strengthening civic monitoring of detention facilities in Russia” in 14 regions of the Russian Federation, conducted a study on the observance of the right to privacy in places of deprivation of liberty. According to the results of the study, it can be concluded that all video recordings, including recordings from stationary video cameras and video recorders, are stored on the institution’s server for 30 days. According to national legislation, access to video recordings is restricted to a limited number of employees, while men can view surveillance recordings of women. The legislation of the Russian Federation does not restrict the right to observe prisoners of a different sex by the staff of the Federal Penitentiary Service.
Basically, in all institutions, there is no video surveillance in the bathrooms and washing rooms. In some regions, the cells of the pre-trial detention center were found with fully visible bathrooms through the video surveillance camera (at the time of the visit, no one was held in the cells). In one of the regions, cells were found where the privacy of the sanitary unit from other prisoners is not ensured, which creates conditions for video surveillance of prisoners during meeting a person’s natural needs.
It should be noted that the legislation in Russia does not regulate video surveillance in residential premises where convicts are located. Law enforcement officers represented by employees of the Federal Penitentiary Service and the legislator use video surveillance for 24 hours. First of all, this recording format is explained by the concern for the safety of the convict and other convicts. However, it is always worth remembering that video surveillance of a convicted person is also interference in his/her private life. And for such an intervention, as mentioned above, it is necessary not only to have a legislative norm that allows it, but also a legal basis. What legal grounds can the administration of the institution have if the convicted person behaves correctly, does not violate the internal regulations? And one more important question: for what purposes is it necessary to provide surveillance when the convicted person has gone to bed? The FSIN officers face a difficult task, as they must ensure the safety of the convicted person, but also not interfere excessively in private life. At the moment, the question of how long a person can be removed from surveillance is not raised at all, and this is a problem, since continuous video surveillance does not take into account the individual characteristics of the prisoner and does not allow him/her the minimum privacy guaranteed by article 8.
Project manager of NGO “Man and Law”, member of the PMC of Mari El Republic until 2019 Olga Vasileva:
– The balance between security and the possibility of being alone without video surveillance in the cell for several hours a day should be ensured taking into account the individual characteristics of the prisoner. Video surveillance should be conducted in such a way as to provide a person with at least a minimum of private space, and how much space to give a person should be determined by a commission – by the regime’s employees, a psychologist, a doctor, taking into account the convict’s psychological state, proneness to conflict, health status, presence of diseases that require special attention. The prisoner, as in the case of a daily walk, must know during what period of time he/she is not being monitored, so that he/she can plan free time for changing clothes, praying, and fulfilling hygiene needs.
Thus, employees of the Federal Penitentiary Service should first of all know the standards of human rights in places of detention. And the human rights standards, which are established, among other things, by the decisions of the ECHR, say that in each specific situation, the legality, validity and proportionality of intervention are necessary.