In view of the expanding Corona virus epidemic, Russian lawyers are calling for many held by the Federal Penitentiary Service (FPS) to be released. One obvious candidate, almost continuously imprisoned since December 2016, is Yury DMITRIEV. At the last hearing in his slow-moving trial his detention in custody was extended until the end of June.

In an article in the widely-read Moskovsky komsomolets daily paper, lawyer Alexander Pikhovkin says that the FPS is lagging behind society as a whole and should start releasing detainees and some of its half-million prisoners.

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“The Moscow section of the Federal Penitentiary Service is refusing to accept any new inmates in its detention centres,” writes Pikhovkin.

This decision is not so much a preventative measure as an abrupt halt on the edge of the precipice. It is, perhaps, the first time that such an institution has refused the law-enforcement agencies in their insatiable and unlawful urge to put everyone they can behind bars. Unfortunately, the courts are not on the side of the FPS since they tend, in criminal cases, to act not as parts of an independent judiciary but, rather, as an appendage of the investigative agencies.

Now that the courts, the investigative agencies and FPS institutions are being closed to outsiders, it is more and more difficult for defence attorneys to take part in judicial hearings. Of late “custodial cases” are being heard in the absence of the accused and without their involvement by video link. The current “exceptional circumstances” will not prove an adequate argument in retrospect, however, and the judicial system across Russia is likely to face countless appeals and complaints about these violations. Prolonging terms of custody will only exacerbate the problem.

Those in detention could be released without damaging the goals of justice by replacing custody with any other measure of restraint. The RF Criminal Procedural Code envisages seven measures of restraint, ranging from a signed commitment not to leave the country to house arrest.

Bypass the courts: change the measure of restraint

According to the Criminal Procedural Code the investigator can himself annul or change the measure of restraint against a suspect or the accused if the necessity for its application has ceased or the circumstances under which it was adopted have changed.

The criteria for changing the measure of restraint in such cases are numerous since neither the investigative agencies nor the courts are very particular when they consider the grounds for placing an individual in preventive custody. Thousands, if not tens of thousands, of detainees have been placed in custody, for instance, on the grounds that they hold a foreign-travel passport. In the past this “decisive” argument was hardly reasonable and sufficient. Now that all Russia’s borders have been closed due to the threat of corona virus the artificiality of that argument is fully exposed. Other grounds for placing suspects or accused individuals in custody are, for the most part, just as formalistic and without foundation.

Courts can impose bail, house arrest and a ban on the performance of certain actions.

The State cannot lose by granting bail as a measure of restraint because the population of penitentiary institutions will be reduced while a failure to observe its conditions will contribute to public finances. House arrest is a more rigid measure, but when compared to custody in our pre-trial investigative and detention centres no one could doubt the advantages.

Release from custody on the agreement of the investigator, bypassing the courts, would reduce considerably the time taken to reach a decision. Considering how much time the FPS has wasted since the lockdown in society at large, the question of speed is of the greatest importance. A centralised and organised approach to the issue could be resolved if the investigative agencies issued the necessary orders.

Thousands should be released

On 1 March 2020, there were 518,391 people being held in FPS institutions, of whom 97,676 were in custody in pre-trial detention centres. Last year it cost the federal budget an average of 15,511 roubles, for example, to support each inmate in Moscow’s detention centres. A tiny proportion (253.92 roubles) was spent on medical provision – while 11,516.84 roubles was spent on the wages of the staff. At such levels of expenditure it’s only a question of time before mass starvation and infection begin in FPS institutions.

• Persons suspected or charged with committing non-violent crimes should be released as soon as possible.
• Those convicted of committing minor crimes or crimes of average gravity who have already served enough of their sentence to qualify for parole should also be released.
• There is a separate category of citizen, held in detention centres or in corrective-labour colonies, who are charged with or have been sentenced for “political” crimes: they should be transferred to other forms of detention or punishment.

The recent decision of the Moscow branch of the FPS indicates that the organisation understands how dangerous any further additions to the present population of detention centres and penal colonies would be. This arises from an understanding of the impossibility of observing hygienic requirements, let alone keeping individuals at a safe distance from one another.

While society is suffering an epidemic of corona virus the continuing imprisonment of the persons mentioned above carries the risk of a “sudden” infection of a large number of people in conditions where it will prove difficult or simply impossible to provide them with timely and comprehensive medical treatment.

(This is an abridged translation of the original article.)

Moskovsky Komsomolets, 6 April 2020