Informal prison hierarchy undermines detainees’ dignity in breach of Article 3 of the ECHR. Authorities did nothing to protect the “outcasts”. European Court’s judgment of 2 May 2023 in the case of S.P. and Others v. Russia (applications nos. 36463/11 and 10 others)
Despite Russia’s departure from the Council of Europe last year, the European Court continues addressing structural problems of the Russian penitentiary. In its judgment of 2 May 2023 it has dealt with one of the pillars of the prison violence in Russia – informal hierarchical categorisation of prisoners. The Court has found that the problem of informal prisoners’ status system originating from hard labour camps in the Russian Empire and forced labour camps in the USSR, has been persistently tolerated, if not nurtured by the prison authorities.
In 2019 European Prison Litigation Network made a submission in the case as a third-party intervener. It aimed to demonstrate the systemic nature of violations resulting from the informal hierarchy in Russia; we argued that the scale, entrenchment and complexity of the phenomenon called for an integrated strategy on the part of public authorities. We asserted, in particular, that the State obligation to ensure the welfare of prisoners, stemming from the Court’s jurisprudence, necessitated taking into account the active involvement of the prison administration in the perpetuation of the phenomenon (notably due to the fact, that the administration “retained” one of the prisoners’ castes for its own use as enforcers). EPLN further submitted that prison subculture is a social reaction to the extreme severity of the Russian prison system. Therefore, the State should solve the underlying factors of the phenomenon, related to the improper functioning of the penitentiary system in Russia, and inherited from the Soviet camp culture. In our view, rather than formalising systems for categorising prisoners, involving their screening and the assignment of risk levels, the States should bear an “obligation of normalisation” of prisoners, which includes creating prison conditions that resemble, as far as possible, life outside prison and fostering trust-based communication between prison staff and inmates. Finally, drawing a parallel with the systemic problem of sexual abuse in Irish schools, where the Court required a system of detection and reporting of abuse to be put in place (O’Keeffe v Ireland [GC], no. 35810/09, ECHR 2014 (extracts)) we advocated for creation of independent monitoring bodies composed of members of the public having the mandate to investigate abuse in prisons,.
All 11 complaints jointly examined by the Court were based on the allegations of inhuman and degrading treatment of the applicants in penal facilities across Russia because of their inferior position in an unofficial prisoner hierarchy, which was backed by an informal code of conduct of the criminal underworld commonly referred to as “the rules” (понятия). The applicants further pointed out to the lack of effective domestic remedies for their complaints.
The Court has established that the applicants belonged to a particularly vulnerable category of “outcast” prisoners. Apart from violence and threats thereof, the applicants were subjected to segregation, humiliating practices and abuse in their daily life in prison, and were at a heightened risk of inter-prisoner violence. Hierarchical categorisation of the prisoners’ population and the applicants’ allocation to the lowest “caste” within it undermined their human dignity by debasing them and instilling in them a sense of inferiority vis-à-vis other inmates. This amounted to a form of degrading treatment prohibited by Article 3 of the Convention
List of actions that can lead to a prisoner’s “downgrading” is long and includes, for example, stealing from other prisoners, failing to repay a debt, being an informant or “snitch”, having an unclean or unhygienic appearance or manner, or accidentally touching the person of another “outcast” or his property. Other “transgressions” punishable by “downgrading” include a conviction for sexual offences and crimes against children, and also admitting to having ever engaged in anal or oral sex, whether consensually or by force.
On the applicants’ arrival at the facilities, an informal overseer (смотрящий) would assign the “outcasts” to either do menial chores or provide sexual services to other inmates. According to the applicants, had they refused to provide the services they had been assigned to, they would have been subjected to severe beatings and sexual or sexualised violence. One of the applicants provided the Court with a copy of a questionnaire distributed to prisoners by the prison staff at IK-6 in the Mari El Republic. The questionnaire, among other matters, included questions whether the inmates followed “criminal traditions” and about their attitude towards “outcasts”, offering three possible responses: “contemptuous” (презрительное), “neutral” or “I beat [them] whenever I get a chance” (бью при каждом удобном случае).
The applicants were separated from the other inmates on physical and symbolic levels. They were allocated the least comfortable places in the dormitory and canteen and prohibited from using any other areas under threat of punishment. Their access to prison resources, including showers and medical care, was limited or excluded; they could only use what was left over from the other groups of inmates. They were also forbidden from coming into proximity, let alone touching, other prisoners under threat that that person would become “contaminated”.
The Court has held that denial of human contact is a dehumanising practice that reinforces the idea that certain people are inferior and not worthy of equal treatment and respect. The resulting social isolation and marginalisation of the “outcast” applicants must have caused serious psychological consequences.
Allocation of work duties on the basis of status, with “outcast” applicants being forced to perform jobs and occupations deemed “unclean” or otherwise unacceptable for the other prisoners, further debased them and perpetuated the feelings of inferiority. Not only were the applicants forced to do menial types of work, such as cleaning latrines or shower cubicles, they also were held in low esteem and looked down upon for doing the work considered to be inherently degrading. The status-based allocation of work served to perpetuate the separation of the “outcast” applicants: they were assigned to do “dirty work” because of their status, and anyone who, be it by accident, touched a thing an item deemed “unclean” was liable to “downgrading”.
Moreover, the sense of inferiority and powerlessness among “outcast” applicants would have been intensified due to the permanence of the stigma attached to their low status. An informal rule required them to reveal their status when transferred to another institution, and failing to do so could result in severe punishment. The enduring nature of the stigma removed any prospect of improvement for the “outcast” applicants, even after a lengthy period of detention
Their stigmatisation and physical and social segregation, coupled with their assignment to menial labour and denial of basic needs such as bedding, hygiene and medical care, enforced by threats of violence and also occasional physical and sexual violence, has led the applicants to endure mental anxiety and physical suffering that exceeded the unavoidable level of suffering inherent in detention, even if not all applicants have been subjected to physical or sexual violence. That situation which the applicants endured for years on account of their placement in the group of “outcast” prisoners amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.
The State authorities were aware, or ought to have been aware, of the applicants’ vulnerability which had a systemic and wide-spread pattern across Russian penitentiary. However, the authorities did nothing to acknowledge, let alone address, that problem and took no general or individual measures to ensure the applicants’ safety and well-being.
Remarkably, the Court went further than merely holding the Government responsible for the breach of their “positive obligations” under the Convention. In the Court’s view, the Russian authorities’ failure to act could be seen, in the case at hand, as a form of complicity in the abuses inflicted upon the prisoners under their protection.
In reaching this conclusion the ECtHR pointed out that the authorities not only have taken no steps to protect the applicants from inhuman and degrading treatment associated with the “outcast” status, but also had not put in place effective mechanisms to improve the applicants’ individual situation or an action plan for dealing with the issue in a comprehensive manner.
The Court, in particular, found it inexplicable, that the Conceptual Frameworks for the Development of the Penal System until 2030 (Government Resolution no. 1138-r of 29 April 2021), a policy document which was supposed to outline the main challenges facing the penal system and measures to address them, did not even identify the informal prisoner hierarchy as a problem calling for the particular attention of the prison authorities. EPLN emphasised this lacunae, and the central role played by administration-affiliated prison castes in the endemic problem of torture in Russian prisons, in its reports and communications to the UN Human Rights Committee and Committee of Ministers of the Council of Europe in 2022, as well as this year, in the communication to the UN Human Rights Council in the framework of Russia’s 4th Universal Periodic Review.
The prison staff, as noted by the Court, did not deploy any security or surveillance measures to prevent the informal code of conduct from being enforced on the applicants, or consider how the applicants could be protected from abuse and harassment. The Court also pointed out the absence of a proper classification policy, including screening for the risk of victimisation and abusiveness, consideration of the traits known to place someone at risk and of an individual’s own perception of vulnerability, which was seen as critical to ensuring that potential predators and potential victims are not housed together.
The limitations of the Court’s reasoning can be pointed out since inmates’ screening procedures are a meaningless formality when the prison service is not merely failing to tackle inter-prisoner violence, but actively fostering and fuelling it.
The Court further criticised the absence of standardised policy of punishments for inmates who perpetrated violence seeking to enforce informal code of conduct on others. Its absence showed that prison violence was not taken sufficiently seriously by the authorities and that the prison staff were prepared to allow detainees to act with impunity to the detriment of the rights of other inmates.
The structural nature of the problem examined by the Court made futile any individual measures, such as inquiries, temporary transfer of victims to a “safe place” or to another facility, as they won’t be able to address the core issue at the heart of the applicants’ grievances. This made general action aimed at the eradication of prison subculture even more important.
Finally, the case, as noted by the Court, provided a further illustration of the shortcomings of the Russian domestic remedies formally available to prisoners. In one of the cases, an applicant’s claim was dismissed by the domestic court, with a finding that the applicant had been “made to perform [cleaning duties] by prisoners who [had not been] not parties to the present case, rather than by the prison staff”, and that the prison authorities had not been responsible for that situation because the applicant had “displayed a passive approach to protecting his labour rights”. The applicants’ complaints to various authorities were ignored or ended up with being forwarded to the Penitentiary Service, which summarily rejected them. Moreover, the Russian Ombudsman not only admitted the existence of an informal hierarchy as a matter of public knowledge, but also indicated that complaints in this regard were in all likelihood liable to be rejected.