Prison-Style Noodles
Recently, controversy has flared up once again in the public domain regarding the legality of video surveillance in rooms where Y. Tymoshenko is being held.
Conflicting claims are being made, but how can one determine who is telling the truth and who is lying? Many citizens rely on their own personal preferences: if I do not like “this” side, then it must be lying.
Admittedly, there is another way to try to find the truth: look at the law. And even if it does not provide a complete answer, the situation might at least become clearer.
In the case of video surveillance in Y. Tymoshenko’s hospital room, the State Penitentiary Service of Ukraine (hereinafter—SPSU) maintains that everything has been done legally. Can the officials of this department be trusted?
It is sufficient to consider the legislative basis for the use of video surveillance in general, regardless of who it concerns. Part 1 of Article 103 of the Criminal Executive Code of Ukraine (CEC) stipulates:
“The administration of a penal colony has the right to use audiovisual, electronic, and other technical means to prevent escapes and other crimes, violations of the procedure for serving sentences established by law, and to obtain necessary information about the conduct of convicts.”
But is this the only legal norm regulating video surveillance? The human rights organisation “Donetsk Memorial” inquired with the SPSU about the legislative grounds for installing video surveillance.
In the response received on 14.11.2012, signed by the First Deputy Head of the State Penitentiary Service of Ukraine, S. Sydorenko, it is stated that “the use of video surveillance equipment in a Ministry of Health medical facility... is carried out in accordance with the requirements of Article 103 of the Criminal Executive Code of Ukraine.”
And that is all.
In other words, the penitentiary service has no other normative legal documents regulating the use of video surveillance. Nevertheless, the penitentiary service, according to its representatives, has sufficient legal grounds to use audiovisual, electronic, and other technical means.
However, one should read the provisions of laws beyond the first sentence.
Article 103 of the CEC also contains Part 3, which states:
“3. The list of technical means of supervision and control and the procedure for their use shall be determined by the normative legal acts of the Ministry of Justice of Ukraine.” Yet, any reference to such a normative legal act is absent from the SPSU response. It turns out that all details regarding the organisation and implementation of video surveillance are not normatively defined.
A sane person would understand: if there must be a “procedure for the use of technical means of supervision and control,” then any actions can be considered legal only if they comply with this “procedure for use.” Moreover, only if such a “procedure for use” exists is it possible to assess, for example, whether it is permissible to install video cameras in a toilet or shower room, or whether such is not provided for by a normative legal act (as the CEC certainly does not define these nuances), whether video cameras should operate 24 hours a day or only at certain times, and how to proceed in cases of video surveillance of women.
In the absence of a normative document, the implementation of Article 103 is impossible, as the specific list of technical means of supervision and control and the procedure for their use are missing. Furthermore, the lack of legal regulation of officials' actions deprives a person of the opportunity to appeal against unlawful actions.
It is precisely for this reason that the request to the SPSU included the question: “Since the installation of video cameras restricts the right to privacy, there must be clear and effective mechanisms against possible abuses of this restriction. What mechanisms are there to counter such potential abuses?”
S. Sydorenko’s answer to this question is highly telling:
“In order to maintain a balance between security measures and the right to privacy of the convict, video surveillance is not conducted during any examinations and medical procedures performed by doctors.” But this stated method of “maintaining a balance” is exclusively the opinion of the First Deputy Head of the SPSU, and nothing more. After all, if, for example, video surveillance were to be conducted during examinations by doctors, it would be impossible to challenge this—not a single legal norm would be violated. Because such norms simply do not exist; they are not defined.
It is obvious that when there are no “limits of authority,” there are no grounds to act. And it is entirely clear that in such a situation, there is absolutely no possibility of determining whether certain actions of the department are legal. Therefore, any use of technical means is possible solely in the presence of a normative document, which does not yet exist.
Consequently, it turns out that the representatives of the penitentiary service are lying when they claim to be acting legally. Perhaps they do not finish reading Article 103 of their own CEC, or perhaps there are other reasons important to them.
It is worth noting a few more important circumstances regarding the application of legal norms. One is that the use of technical means must necessarily be motivated.
Indeed, the use of video surveillance cameras might be justified in a room where a convict prone to suicide is held. Or to escape. One can be certain that in the Kachanivska colony, among the female convicts, there are women with mental disorders, perhaps prone to suicide or self-harm. But are there video surveillance cameras in the rooms where they are kept?
In 2012, there were 65 cases of suicide in penitentiary service institutions, and there were likely many more attempts. Now, it is worth asking the penitentiary service: in how many of those 65 cases was video surveillance used? The question seems almost rhetorical. Perhaps some of those 65 prisoners could have been saved if there had been video surveillance cameras in the rooms where they were held.
There is also another significant circumstance regarding the use of “technical means,” which is the purpose of their use. It is worth re-reading Part 1 of Article 103 of the CEC to see for what purpose technical means are installed. This is done for
1) the prevention of escapes and other crimes,
2) (the prevention of) violations of the procedure for serving sentences established by law,
3) obtaining necessary information about the conduct of convicts.
Therefore, even if the use of video surveillance were legal, it is difficult to imagine that video cameras were installed to prevent Yulia Tymoshenko from escaping.
Perhaps to prevent “violations of the procedure for serving sentences established by law”?
Possibly. But which ones? How serious are they? Why are these potential violations more important (prioritised) than the possibility of suicide? The penitentiary service does not explain.
But there is also the purpose of “obtaining necessary information about the conduct of a convict.”
What “necessary information” could the penitentiary service possibly need in the room where Y. Tymoshenko resides? The penitentiary service must explain what kind of information it is gathering through video surveillance. Without specifying—publicly specifying—the motive for video surveillance and the necessary information for which it is being used, it is impossible to consider the installation of video cameras legal. Because without sufficient, adequate, and convincing argumentation, the use of video surveillance turns into a whim, an act of arbitrariness. And this would not correspond to
Article 8 of the CEC, which determines that
“Convicts have the right... to humane treatment and respect for the dignity inherent in the human person”
and Article 3 of the Constitution of Ukraine, which proclaims that “the human being, their life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value.
Human rights and freedoms and their guarantees determine the essence and direction of the state's activity. The state is responsible before the individual for its activity. The assertion and provision of human rights and freedoms is the main duty of the state.”
It is also worth remembering that, in accordance with Article 19 of the Constitution of Ukraine, “Public authorities..., their officials are obliged to act only on the basis of, within the limits of authority, and in a manner provided for by the Constitution and laws of Ukraine.”
Video surveillance cannot be used just because the law allows it. The use of technical means can be justified (and thus “legal”) when it is impossible not to use them or when failure to use them could lead to severe consequences for the serving of a sentence. Is this the situation with Yulia Tymoshenko or with anyone else under video surveillance? If so, the penitentiary service must convincingly prove it. A refusal to prove such necessity can only mean one thing: the penitentiary service has no such arguments.
In view of the above, it is appropriate to ask: can one always trust the claims of penitentiary service representatives that they are acting exclusively “legally”? This can be assessed following the submission by the Human Rights Ombudsman to the Ministry of Justice regarding the illegality of deploying special forces units without a regulatory framework for their activities. In 2010 alone, special forces units were involved in operations in penal institutions (without a proper regulatory framework and, in my opinion, illegally) 253 times, and in 2011—306 times.
And always—according to the assurances of the penitentiary service representatives—these units acted “legally.” If everything was “legal,” then why did the Human Rights Ombudsman demand an end to their deployment? It means the service’s representatives were lying when asserting the “legality” of using special forces units.
By the way, in responses to the numerous appeals by “Donetsk Memorial” to the prosecutor’s office regarding violations, the latter also always recognised the actions of these units as “legal.” This is a remark regarding the level of competence of prosecutors.
Another striking fact about the “legality” of the penitentiary service’s actions are the cases won recently at the European Court of Human Rights by prisoners of the Iziaslav colony, who were treated with extreme cruelty, a fact recognised by the European Court. And it is precisely regarding these actions that the penitentiary service not long ago maintained that they “acted legally.” And the prosecutors sang along with them. For this penitentiary “legality,” the state must now pay more than 400,000 Euros.
Thus, whether the SPSU is using video cameras legally in any of its institutions, and in particular in the hospital where Y. Tymoshenko is held, is for the reader to decide. In accordance with their own preferences and ideas about the “legality” of certain actions.
Perhaps some will agree that, unfortunately, there are still many situations where to believe the penitentiary service is to deceive oneself.