SIZON inequality – Newspaper Kommersant No. 38 (7483) of 03/06/2023

The Constitutional Court will decide what norm of “living space” the inhabitants of the pre-trial detention center can count on. The reason for checking the relevant norm of the Criminal Executive Code (PEC) was the inequality between inmates: if the suspect and the accused are guaranteed at least 4 square meters by law. m, then the convicts who ended up in the pre-trial detention center – half as much. And all because the guarantees of the minimum area norm for them are enshrined in different laws, the expert explains.

The Constitutional Court (CC) accepted for consideration the complaint of Maxim Piskarev on Part 3 of Art. 77.1 of the PEC, according to the website of the court. The contested norm stipulates that convicts transferred to a pre-trial detention center to participate in investigative actions are kept there on the conditions of serving their sentence. According to the complainant, this is contrary to several articles of the Constitution, including those prohibiting torture, as well as guaranteeing the equality of all before the law and giving the right to compensation for harm caused by the actions of public authorities.

In 2020, Maxim Piskarev filed a lawsuit with the Oktyabrsky District Court of Arkhangelsk against the Federal Penitentiary Service to recover compensation for inadequate conditions of detention in SIZO-1 in the Arkhangelsk Region. He complained about the violation of the sanitary norms of the square when he was kept in the general cells of the isolation ward. According to the law on the detention of accused and suspected persons, each occupant of a cell must have at least 4 sq. m of space, but the applicant spent eight months in a 40 sq. m, where at different times from 9 to 20 people were kept.

However, the court satisfied Mr. Piskarev’s application only partially, awarding him compensation of 10,000 rubles. instead of the requested 300 thousand.

The Court decided that the applicant had spent most of his time in the SIZO as a convict, which was subject to a much more modest space requirement.

As follows from the materials of the Oktyabrsky Court, in 2017, convicted Piskarev was transferred from Surgut to Arkhangelsk in connection with the investigation of a new case: while behind bars, he was engaged in telephone fraud. As a result, the court concluded that the applicant’s rights had been violated, but only during the period when he was in custody as a suspect (during his stay in the Arkhangelsk pre-trial detention center, the term of serving the previous sentence ended, but Mr. Piskarev was immediately arrested as part of an investigation on new case). After all, according to the law on the detention of accused and suspected persons, the sanitary norm of the area per person is at least 4 square meters. m. As for the months spent in a pre-trial detention center as a convict, then by virtue of Art. 77.1 of the Penal Code, the norm established for correctional colonies is already in force here, and according to it, at least 2 square meters per inmate. m area.

As a result, the applicant notes, the court made a paradoxical decision: it came to the conclusion that for several months in 2017-2018 his rights were not violated, and within one month in 2018 they suddenly turned out to be violated and the applicant himself experienced moral and physical suffering.

Although, Mr. Piskarev wonders, all this time he was in the same cell and in the same conditions.

The applicant recalls that when considering issues related to the conditions of detention, Russian courts, as a rule, recognize as a violation the detention in conditions where there is less than 4 square meters per inmate. m, while staying less than 3 sq. m is equivalent to torture. It turns out that the controversial norm allows, in fact, on legal grounds, to subject convicts to torture and inhuman treatment, Maxim Piskarev is indignant.

This complaint has a good chance of being supported by the court, says Georgy Ivanov, head of the Moscow branch of the Team Against Torture (created instead of the Committee against Torture, entered into the register of foreign agents and later liquidated). He explains that the minimum standards for the area of ​​detention in a pre-trial detention center for the accused and convicts are different, since they are enshrined in different laws: the PEC provides for premises with an area of ​​​​at least 2 square meters. m per person, and the law on the maintenance of the accused and suspects – at least 4 sq. m.

The convicts have a guaranteed floor space norm, because the barracks, to which these standards apply, are not the only place where a person is in the colony, the expert continues. The prisoner goes to the canteen, industrial zone, cleans the territory, actively moves throughout the day throughout the institution. The accused is in a closed cell for 24 hours, and that is why he needs a large area for a more or less tolerable existence, Mr. Ivanov emphasizes.

But if the convicted person is left or transferred to a pre-trial detention center to participate in a new criminal case, then after the sentence enters into force, without leaving the same cell, he loses the right to 4 square meters. m.

And a long stay in an overcrowded pre-trial detention center really testifies to a violation of the right not to be subjected to cruel or degrading treatment, the lawyer notes. He is sure that the law, which in such situations allows violating this absolute prohibition, should not be applied: “I hope that the court will recognize the existing legislative regulation as inconsistent with the Constitution.”

Anastasia Kornya