Lighting for prisoners – a demand or a right

It so happens that issues regarding the conditions of detention and the rights of individuals held in penal institutions and pre-trial detention centres of the State Penitentiary Service of Ukraine (hereinafter — institutions) only begin to be discussed, and sometimes even resolved, by penal authorities sporadically, ‘post factum’, so to speak. Most often, this occurs when certain information leaks to the outside world and gains publicity, having failed to be contained within closed walls; for example, as in the case of recent events surrounding certain political leaders, who are being held, incidentally, not in the worst of institutions.
However, despite the fact that this information concerns showcase facilities and conditions, serious problems within the department are rising to the surface. After all, it is difficult to ensure detention conditions that meet standards in even a single cell when there are systemic problems. It is a pity that the state, as well as Ukrainian society and ‘conscientious’ journalists, only become interested in these problems when it concerns certain prominent individuals, given that approximately 154,000 people are currently held in these institutions (!). Almost no one has even questioned on what legal basis certain figures are in better cells, are transferred (transported) in comfortable vehicles, receive medical and other care that is completely unusual for places of detention, and how fair this is in relation to the other 154,000. Each reader will clearly answer this question for themselves.
But that is not my point. In this essay, I will not touch upon the global problems of these institutions, but only a narrow yet important problem, namely the use of lighting and means of surveillance and control, such as, for example, video monitoring.
When the press raised the issue of lighting and the use of video monitoring as means of control and surveillance in institutions, the State Penitentiary Service of Ukraine (SPSU) issued the following press release:
http://www.kvs.gov.ua/punish/control/uk/publish/article;jsessionid=18DD0E133AB52F872D19C8C1C60EC45C?art_id=96163&cat_id=45347
It was indicated that such use complies with both national and international legislation. In doing so, the SPSU referred to four regulatory acts, of which: one is no longer in force (referring to the mentioned European Prison Rules of 02.02.1987, as they were completely replaced in 2006 by the revised European Prison Rules); the second does not apply to this case; and the third has an incorrectly stated date of adoption (it is indicated that the Standard Minimum Rules for the Treatment of Prisoners were adopted in 1984 by the United Nations, whereas they were adopted in 1955).
Hypothetically, the SPSU could have grounds for using means of surveillance and control only based on Article 103 of the Criminal Executive Code of Ukraine (CEC), which is titled ‘Technical means of surveillance and control’, were it not for the following ‘buts’. Firstly, the norms of the CEC of Ukraine establish the procedure for the execution and service of sentences, and therefore do not apply to persons held in custody in pre-trial detention centres and units of this institution in colonies. Secondly, Part 1 of this article states: ‘The colony administration has the right to use audiovisual, electronic, and other technical means to prevent escapes and other crimes, violations of the order of serving sentences established by legislation, and to obtain necessary information about the conduct of convicts’ (emphasis added — V.Ch.). In Part 3: ‘The list of technical means of surveillance and control and the procedure for their use shall be determined by regulatory acts of the central executive body on matters of execution of sentences’ (emphasis added — V.Ch.).
In fact, this norm provides for the possibility of using means of surveillance and control only for the three specified purposes. Despite this, the SPSU publishes such grounds for the use of night lighting and video monitoring as: guaranteeing personal safety and constant supervision of prisoners. It is telling that the press service states that all cells are equipped with video monitoring, which gives reason to suspect their widespread use.
However, the most interesting aspect is that today, the colony administration has no right at all to use technical means of surveillance and control until a special regulatory act or acts are adopted. This conclusion is justified by the following. Firstly, in accordance with Part 3 of Article 103 of the CEC, the list of technical means of surveillance and control must be defined in the regulatory acts of the SPSU; furthermore, these same acts must define the procedure for their use. As far as is known, such regulatory acts do not exist today. It turns out that it is unclear which technical means can be classified as means of surveillance and control, which of them can be used in colonies, or what the procedure for their use is. Secondly, Article 19 of the Constitution of Ukraine states that: ‘Bodies of state power and local self-government bodies, and their officials are obliged to act only on the basis, within the limits of authority, and in a manner provided for by the Constitution and laws of Ukraine’. Therefore, the absence of an act, which is required in accordance with Part 3 of Article 103 of the CEC, indicates the impossibility of acting through the use of the specified means.
As for the use of such means in pre-trial detention centres, correction centres, and arrest houses (during the execution of a sentence in the form of arrest in a pre-trial detention centre), the legislation does not provide for the possibility of their use in these institutions at all. Based on the aforementioned Article 19 of the Constitution of Ukraine, the use of technical means of surveillance and control in these institutions is also unlawful.
It is worth noting that these arguments do not at all deny or diminish the need and importance of having the possibility of using technical means of surveillance and control in institutions. It is simply that their use must be carried out in accordance with legislation.
It should also be noted that in the analysis above, in the part concerning the lawfulness of using lighting, it was considered as a means of surveillance and control (if considered necessary for conducting video monitoring). Therefore, it is necessary to add a few words about the so-called duty lighting, which is used in most institutions.
The CEC and the Law of Ukraine ‘On Pre-trial Detention’ do not provide an answer as to how the lighting of premises in relevant institutions should be carried out.
In the Internal Regulations of Penal Institutions (which regulate the procedure for the execution and serving of sentences in the form of arrest, restriction of liberty, deprivation of liberty for a specific term, and life imprisonment), only point 17 contains one instruction regarding night lighting: ‘General lighting electric bulbs are installed in niches on the ceiling, and night lighting bulbs in niches above the doors’. But nothing is said about when they should be switched on, when switched off, what the wattage of the incandescent bulb should be, etc.
As for pre-trial detention centres where, as is well known, 24-hour lighting is also used, the Rules of Conduct in Pre-trial Detention Centres for persons in custody and convicted persons contain no provisions at all regarding the lighting of premises. The Regulations on the pre-trial detention centre unit on the territory of a correctional colony also say nothing on this matter.
In answering the question about the admissibility of night lighting in penal institutions, the Chief Sanitary Doctor of the Kharkiv Region noted that according to international standards, the level of night lighting in hospital wards should not exceed 5 lux, and also that such a level of lighting cannot worsen the health of people staying in such an institution (colony). First of all, the second thesis-conclusion does not inevitably follow from the first, as people, as a rule, do not stay in medical institutions for several years. Secondly, the doctor does not specify what these standards are; however, it was not possible to find them. Thirdly, even if we assume that such standards do exist, they concern medical institutions, and it is not at all clear that in accordance with them, the light must be on constantly and that the person receiving treatment should not have the ability to switch it off. Furthermore, as is known, in Ukrainian penal institutions and pre-trial detention centres, night lighting mostly far exceeds 5 lux, and the existence of exceptions most likely confirms the rule.
In addition, international standards for the treatment of prisoners indicate the unlawful nature of using night lighting constantly, rather than when necessary. We are referring primarily to the reports of the Committee for the Prevention of Torture or Inhuman or Degrading Treatment or Punishment (the Committee) and the decisions of the European Court of Human Rights (the Court).
Already in its report on the results of its 1998 visit to Ukraine, the Committee called 24-hour artificial lighting a ‘flaw’ (defect) and recommended correcting this shortcoming. In point 79 of the report on the results of the 2000 visit, the Committee called constant artificial lighting one of the material conditions constituting a series of adverse factors, and recommended immediately eliminating this shortcoming (point 80). In the report on the results of the 2002 visit, the Committee repeated the recommendation that the constant electric lighting system should be reviewed to make it possible to switch off the light at night if necessary (point 95), and that artificial lighting should not be switched on at night except when necessary (point 100). In the report on the results of the 2005 visit, the Committee again recommended reviewing the practice of leaving lights on in cells at night and that the light should remain on only in specific cases (point 108). It can also be noted that, as practice shows, the Committee never approves of mandatory 24-hour lighting.
It is known that when resolving cases based on applications from persons held forcibly in closed institutions, the Court is often guided by the standards enshrined in the Committee’s reports. Therefore, the SPSU should seriously think about reviewing the lighting system in subordinate institutions and making adjustments to the regulatory framework.
Today, there are a number of Court decisions in which the use of constant artificial lighting in penal institutions is considered as one of the conditions that, in their entirety, constitute a violation of Article 3 of the Convention, which prohibits torture and inhuman or degrading treatment or punishment. For example, in the case of Stepuleac v. Moldova, the Court considered this condition among those contrary to Article 3 of the Convention. In the case of Arefyev v. Russia, the Court considered the conditions of detention in the pre-trial detention centre in Ivanovo 37/1 as a violation of Article 3, and among the described conditions was lighting that functioned 24 hours a day. In the case of Lyubimenko v. Russia, a violation of Article 3 of the Convention was recognised. The applicant complained about poor conditions of detention in the pre-trial detention centre, among which he cited the constantly switched-on lighting that prevented him from sleeping. In the case of Gubkin v. Russia, the applicant also complained, among other things, about constant, 24-hour lighting in the pre-trial detention centre as something that prevented him from sleeping. In general, an analysis of the Court’s practice indicates that 24-hour switched-on light is one of the problems of former Soviet Union countries.
Summarising all that has been said above, one can recommend, taking into account the practice of imprisonment, international standards regarding conditions of detention, including the Convention for the Protection of Human Rights and Fundamental Freedoms, and the practice of the European Court of Human Rights, the following:
a) adopt a special regulatory act that will regulate the use of technical means of surveillance and control, as well as establish their list; specify the purposes for which they can be used, as well as justify the selection of one type of these means over another;
b) regulate the lighting procedure, including: providing that 24-hour lighting may not always be used, but only when necessary; specifying exactly in which cases it may be applied; and when it must be switched on and off;