Office for the rights of persons with disabilities considers that at the stage of preliminary investigation people with severe illnesses and mental disabilities should not be kept in custody but under a written undertaking not to leave a place. Letters with a request to change the legislation have been sent to the House of Representative of the National Assembly of the Republic of Belarus, the Ministry of Internal Affairs and the Ministry of Health.
- People with disabilities and severe illnesses or their close relatives often apply to our organization with a request to help to change the pretrial detention, - says the director of the Office Enira Bronitskaya. – Keeping a person with a severe illness in pretrial custody can negatively influence his or her health and lead to traumas or severe injuries. For example, today for more than 9 month an underage juvenile with mental illness has been kept in custody in Gomel.
Experience of other countries
Detention measures, in accordance with the article 116 of the CPC of the Republic of Belarus, are compulsory measures applied to a suspect or an accused in order to prevent him from committing socially dangerous acts or acts hindering the criminal proceedings and to provide the execution of the sentence. There are 7 kinds of preventive measures among which detention is the strictest one.
For example in Russia the strictest measure is not used to persons with disabilities: there is a list of severe illnesses which prevent from keeping suspects or accused in committing a crime in custody.
Under surveillance of doctors
The Universal declaration of human rights defines the right of a person to health regardless of his legal status. According to the International Covenant on Economic, Social and Cultural Rights and its article 12 the state-parties shall recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and in order to achieve it shall create conditions which would assure to all medical service and medical attention in the event of sickness. The Committee on Economic, Social and Cultural Rights explains the right to health as a country’s obligation to respect the right to health and refraining from denying or limiting the equal access for all people including prisoners to medical services.
Principle 9 of the Basic Principles for the Treatment of Prisoners says that “prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation”. Principle 20 of Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care says that all the persons serving sentences for criminal offences, or who are otherwise detained in the course of criminal proceedings or investigations against them, and who are determined to have a mental illness or who it is believed may have such an illness should receive the best available mental health care equally with other people.
But the Office’s lawyers say that it is not always possible to follow these rules especially in pretrial detention and that is why a choice to put people with severe illnesses in places of pretrial detention should be the last of all the possible measures.
After the Convention was ratified by Belarus in October 2016 the country should pay more attention to the problems of persons with disabilities, in particular many of the document’s resolutions concern prisoners with mental illnesses. Article 5 of the Convention prohibits disability discrimination and demands from the state to provide reasonable accommodation. Special rapporteur on torture stated that lack of reasonable accommodation in places of imprisonment can raise the risk to become a subject of violence, torture and cruel treatment. Article 15 of the Convention says that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 16 prohibits exploitation, violence and abuse of persons with disabilities. Article 17 says that every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.
Taking into consideration all the above mentioned legal aspects the Office asks to consider the issue of creation a normative act or to amend the existing legislation in order to abolish incarceration during investigation for persons with severe illnesses and especially with mental ones, sums up Enira Bronitskaya.