What lies behind FSIN’s promoting of “forced labour used as an alternative to deprivation of liberty”?

BY PROFESSOR JUDITH PALLOT

In a new article in Riddle, an online journal on Russian affairs, project PI Judith Pallot discusses how to interpret the recent announcement that the Russian Prison Service to contract out = penal labour to work on the BAM railroad.  The publication is available in Russian and in English. A longer version is available here on the project blog.

 

Last month FSIN (the Russian Federal Corrections Service) made the startling announcement that it was negotiating a contract with the Russian Railway Authority to use penal labour to work on the Baykal-Amur railway project.  FSIN’s right to sub-contract out penal labour to private companies and other state agencies is an extension of the punishment of ‘force labour as an alternative to deprivation of freedom’ (принудительные работы применяются как альтернатива лишению свободы) which was added to the criminal correction code in 2011.[1]

The choice of the BAM railway project to illustrate the new form of punishment appears to be intentionally provocative, as BAMLAG was the largest of the 1930s camps. At its height in 1938 it held 20% of all gulag prisoners and between 1932-1938 it accounted for 40,000 deaths (including 837 executions) in the gulag.[2] The prison service director, Aleksander Kalashnikov, has insisted that conditions for today’s labourers will be quite different from those in the gulag.  It is reassuring that FSIN, the Russian penitentiary service, is not planning to work people to death.

Forced labour is not new in the repertoire of punishment forms in Russia. It has been used for over a century. Its history is celebrated in a FSIN booklet produced in 2019 on the hundred-year anniversary of the institution.[3]  The booklet traces the origins to the founding by the Moscow City Soviet of the Bureau of Forced Labour in 1919, It is presented throughout its history as an alternative sanction to imprisonment, although sometimes, as during the GPW, having ‘carceral elements’.[4]   As the booklet explains, forced labour has been used to solve a variety of problems: shortage of gulag guards, prison overcrowding, funding gaps, providing labour for industries dangerous for workers’ health and so on.  For most of the 20th century, it was labelled ‘correctional’ labour. The feature that distinguishes ‘forced’ from ‘correctional’ labour today, is that recipients of the sentence of the former are confined in “special facilities”, known as correctional centres (Исправительные центры or ITs), whereas the latter live at home.

The post-Soviet (re)introduction of the concept of forced labour is associated with Justice Minister Aleksandr Konovalov’s attempt with a 2010 penal reform to break the domination of the Vory-v-Zakone in Russian penitentiaries by separating recidivists and first-time offenders.[5]  Konovalov raised a few eyebrows when he described the sentence of “forced labour used as an alternative to the deprivation of liberty” as analogous to Soviet-era khimea, and the ‘beneficiaries’ as khimiki.[6] The reason for its relaunch in the 2020s, according to FSIN’s Director, is to replace the exodus of migrant labour from projects like BAM. The possibility that using penal labour to fill a labour gap raises questions about Russia’s commitment to its ratification in January 2019 of the Protocol to the Forced Labour Convention of 1930[7], but this apparently does not trouble Kalashnikov and his supporters in FSIN. Nevertheless, major-general Elena Korobkova, head of UOINIO[8] felt it necessary to correct her boss by explaining that replacing migrant labour is not the aim, rather, forced labour it should be understood as a further stage in the humanisation of punishment in Russia.[9]

Ever since the BAM announcement, I have puzzled over what appears to me to be an essentially oxymoronic formulation of this ‘new’ penal sanction.  ‘Forced labour used as an alternative to the deprivation of liberty’ does not fit comfortably with internationally accepted alternatives to incarceration, which share the common feature that they are non-institutional and allow the recipient of the sentence to live at home. [10] The new sanction in Russia requires the recipients of a force labour sentence to live in a facility that they are not allowed to quit.  The majority of these are located on the territory of a FSIN prisons, in which case they are known by the acronym UFITs (изолированный участок, функционирующий как исправительный центр).  Simple ITs (ispravitel’nie tsentri ITs) are off-site facilities which can be built by FSIN, another state agency, or private enterprise. At the present time there are 121 of both sorts combined with a capacity for over 9000 people.[11]

Restrictions on of twenty-first century khimiki are less than in colony-settlements, the next rung up in the penal ‘ladder’, but a sentence of forced labour does come with a serious deprivation of their freedom of movement. [12]  Forced labourers must live in the FSIN facility and conform to its internal regime rules. These include being inside the facility outside of work hours. Work hours include the transit time to and from the place of work as calculated by the ITs adminstration or spetskommanidtura. Forced labourers have no right to refuse the work contracted for them and, if they do, they risk referral to the court for (re)sentencing to a higher category facility.  Residents must conform to a daily timetable, a model of which is shown in figure 1. Order is maintained by what is described as light-touch nadzor, or supervision, but which appears to require a large input of personnel. The prototype FKU ITs No. 1 in Kazan located on the site of a former juvenile colony, has 24 personnel for 240 residents, backed up by 60 cctv cameras.[13] If khimiki wish to leave the facility at any other time (such as to shop for food, as forced labourers are self-provisioning  or  to take part in any other non-work-related activity), they must apply in writing to the facility governor.  They can also apply for weekend exeats and furloughs, and once near the end of their sentence to live off-site with their family. The granting of these privileges which are available to most prisoners, depends upon the record of their behaviour.

Fig. 1. The daily timetable as recommended in the ‘internal rules for correctional centres of the criminal-justice system’.

Подъем 6.00
Физзарядка 6.00-6.15
Туалет, заправка коек 6.15-6.45
Утренняя проверка 6.45-7.00
Завтрак 7.00-7.45
Время выхода на работу 7.45
Завершение работы 18.00
Личное время 18.45-21.45
Вечерняя проверка 21.45-22.00
Сон (непрерывный) 22.00-6.00

The GULAGECHOES project has been able to interview people serving out their sentences as forced labourers in an UFITs in one region.  All the interviewees had transferred from a high category facility.  Overall, they were positive about the changes in their lives compared with the correctional colony in which they started their sentences. Here is one man serving a 14-year sentence: “The most difficult thing there was to hear your relatives crying on the phone. And you are in the colony, and you cannot do anything. You want very much to help but there is no way you can, your hands are tied.  You are stuck behind the wall, and she is on the other side, … maybe in the same city, and you can’t do anything.  But now I am generally calm. I can stop by after work. I must get back before eight in the evening. But after work, if I finish, if I … I make an agreement with my boss at work, I can finish early and go home. I still have time to do something, like clear the snow at home, put a nail in something, so things around the house or …. something else.” After family connections, permission to have ‘legal’ mobile phones and making dietary choices figure in the positive comments. Here is one very happy woman who said she had no idea what awaited her but as says: “Girls, phones here are so cool, you can have money, you can dress as you like, you can grow your nails long and you can use perfume … and we have cake every day, meat, tra-la la.” The principal compliant was that the transformation from prisoner to forced labourer wipes out a convict’s entitlement to apply for UDO.

The physical living arrangements in ITs effectively reproduces the collectivism of the correctional colony. Accommodation can be the form of dormitories, with a space standard of 4m2, higher than the current norm for correctional colonies, guaranteed for each resident. For off-site correctional centres (UFITs) built by parties sub-contracting penal labour, separate accommodation must also be provided for FSIN personnel.  It is possible to glean from examples on FSIN websites, our own interviews and social media postings that, dormitories are, indeed, the preferred option. Where these are on FSIN territory, they are generally re-purposed regular detachment-unit buildings, that are divided from the rest of the living zone of colonies in their own enclosure. Off-site correctional centres can be built de novo. In Moscow oblast, where there are three  each for 50 workers, they consist of two-storey buildings which, in addition to separate communal dormitories for women and men, contain a room for the receipt of parcels, a sanitary-hygiene room, and ‘education’ room.  But they can also be prefabricated, modular barracks like those used by the military that can be easily moved to new locations as the labour demand shifts. This is what is recommended for the Artic correctional centres and presumably will be used on BAM.[14]

FSIN’s rejection of the opportunity of giving forced labourers their own rooms allowing them some privacy and dignity, is an indication of where its priorities lie in the cost-benefit analysis of introducing the punishment of forced labour. It is clear from one of our interviewees, that the reproduction of the detachment-unit accommodation in ITs also reproduces the classic social order of the ‘society of captives’.  While the division of ITs residents into “red” and “black” is more muted than in the colony in which the interviewee was detained, the hierarchical social ordering, with outcasts or shunned (opushenye) at the bottom has survived: ‘the pederasts, outcasts are here and they also work but we try not to come into contact with them …   of course, there is the danger of being dirtied by them …  but (knocks on wood) heaven forbid that you do have physical contact with them. If you do, you automatically become an outcast yourself.’  None of our respondents complained about the material conditions of their forced accommodation, but most were habituated to communal living in the colony.  The NGO Gulag-info, however, posted one complaint from an UFITs in Nizhnegorod oblast where khimiki had been placed in a converted sports hall, where there are no windows or drinking water.[15]

 A dormitory in an UFITs in Moscow Oblast.

A dormitory in an UFITs in Moscow Oblast.The kind of work contracted for forced labourers is largely menial and manual. In an information booklet produced by FSIN for potential partners, a broad range of activities are identified for which penal labour constitutes a good fit: communal-housing services, agricultural, manufacturing and building sectors. By contracting penal labour, the booklet  the sub-contractor  is guaranteed a workforce that cannot leave, freedom from the trouble of hiring and firing,  and ‘constant supervision’ by FSIN officers.[16]  The labour is, moreover, cheap and can be at the national minimum. As for the forced labourers, they have to pay an overhead tax of between 5 and 20% to the correctional centre, plus any relevant state taxes.  Our respondents were pleased to have the opportunity to earn money as there is still a shortage of work in men’s correctional colonies, but they have no illusions about the work providing them with new skills training: “Yes, we go wherever they send us, where there are not enough people … We are sent anywhere, where people don’t want to work; for example, to break up frozen ground in winter – who else would do that? Nobody. So, we must do it. And if we refuse, it’s a violation and it’s back … [to the colony]. It is doubtful that the work on BAM or FSIN’s other much publicised forced labour project – to clear up Artic pollution – will contribute to the khimiki’s ‘social lift’.

I should make clear that I support any move in the direction of the development of milder forms of punishment in Russia. But I am suspicious of mislabelling.  The compulsory daily routines, restrictions on mobility, living arrangements and militarised corps supervising compliance with regime rules together add up to carceral character of the punishment of forced labour now being promoted by FSIN. What is being presented as an alternative to the deprivation of freedom, quite clearly does noy cross line between custody and non-custody. In their main features UFITs and ITs regimes, bear a strong resemblance to what are described in other jurisdictions as ‘open’, ‘minimum security’ or ‘low category’ prisons. In open prisons, prisoners can be released on license to work outside the prison, can apply for furloughs, and, when newly sentenced, they can make their own way to the facility.[17] I suspect that FSIN knows this well. When challenged that the forced labourers are, de facto, prisoners, Elena Krobokova has no answer other than to endlessly repeat the tautology that “No, they are not prisoners: We are talking about people sentenced to forced labour.[18] Further proof offered that ITs and UFITs are not prisons is that they do not have watchtowers.[19]

The interesting question is why FSIN is not naming this new form of sanction by its right name. It could be that it is part of the ongoing process of rehabilitating the gulag that was founded on the principle of forced labour. But a major explanation must lie with the audience FSIN is addressing.  Since it joined the Council of Europe in 1996, the Russian Federation has had to respond to repeated criticisms of its prison system. By classifying this ‘new’ form of punishment as an alternative to incarceration, FSIN can improve the reputation of Russia for having the harshest prison regime Europe.  Firstly, as acknowledged by the Justice Minister, Konstanin Chuichenko, it reduces the prison population in Russia, almost in one stroke.[20] Currently, Russia vies with Turkey for top spot for the rate of imprisonment among Council of Europe states. In both countries imprisonment rates 2/3rds higher than the average, and have an imprisonment rate 100/100,000 above state next rung down according to the number of prisoners per 100 000 population.  If the 188,000 prisoners entitled to apply for a transfer to a forced labour institution do so, this will bring Russia’s rate of imprisonment to below that of Georgia and Lithuania, and place it among most of the post-communist states, and it can achieve this without actually having to free anyone.[21] Secondly, the classification of forced labour as an alternative to custody, shields UFITs and ITs from the prying eyes of prisoner inspectors from the Committee for the Prevention of Torture and ONKs, and at the same time obviates the necessity of giving up the communal dormitory to which it the Russian prison service has had an attachment since it was introduced into the gulag.

Returning to the BAM project, Kalashnikov insists that it is only local people who will be sent to work on the line – the migrant labour that penal labour will replace, was used for manual tasks of double tracking the railroad, tunnelling and rebuilding station on the line that have fallen into disrepair.  But it is hard to imagine what is ‘local’ in the context of BAM 4324 kilometres that goes through some of the most sparsely populated parts of East Siberia and the Far Eastern Federal Regions. But Kalashnikov’s answer is to say that families can move to where their loved ones are working.  With this we can the Dekabristki to the list of historical analogies used to describe FSIN latest ‘new idea’.

 

[1] Article No. 53.1 on ‘forced labour used as an alternative to deprivation of liberty’ was added to the Criminal Code under Federal Law F420-F3, 7th December 2011, and the extension to the criminal code was added on 13th Feb 2019.

[2] Nakonenchnyi, M (2021) ‘Bamlag’s lingering shadow’ see, https://blogs.helsinki.fi/gulagechoes/2021/06/03/bamlags-lingering-shadow/

[3] 100-Летний юбилей учреждений и органов уголовно-исполнительной системы российской федерации, исполняющих наказания, не связанные с изоляцией осужденных oт общества, FSIN Moscow, 2019. This is a new anniversary (7th May) that was created by G A Kornienko, previous Director of FSIN  under a decree of 13th November 2018.

[4] Ibid: pp 16-17

[5] This reform was the so-called Concept for the development of the criminal correction system 2010-2020 Concept. The new Concept was heralded intended to rid Russia od all remaining gulag legacies which included the correctional labour colony. Serious offenders would henceforth be confined in prisons and first-time offenders and those convicted of medium to mild offences would be detained in colony-settlements or sentenced to an alternative to custody. These structural changes were dropped within two years, although from that point on recidivists and first-time offenders have been separated in different colonies.

[6] https://echo.msk.ru/programs/beseda/649178-echo/

[7] https://www.ohchr.org/EN/ProfessionalInterest/Pages/Protocol2014ForcedLabourConvention.aspx

[8] This is the acronym for Управления организации исполнения наказании, не связанных с изоляцией осужденных от общества федеральной службы исполнения наказаний or

the Department for the Organization of the Execution of Punishments not related to the isolation of convicts from the society of the FSIN of Russia

[9] https://tass.ru/interviews/11626753

[10] Alternatives to deprivation of freedom, or as they more often known, ‘non-custodial measures’, are indeed, at the core of the humanisation of punishment as promoted international organisations[10]  The range of sanctions they cover are listed in the Tokyo rules[10]: verbal sanctions, such as admonition, reprimand and warning; conditional discharge; status penalties; economic sanctions and monetary penalties, such as fines and day-fines; confiscation or an expropriation order; restitution to the victim or a compensation order; suspended or deferred sentence; probation and judicial supervision; a community service order; referral to an attendance centre; house arrest and any other mode of non-institutional treatment such as electronic monitoring: https://www.ohchr.org/documents/professionalinterest/tokyorules.pdf

 

 

[11] These institutions are intended for offenders found guilty of minor crimes sentenced by the court to forced labour, or as a post-sentence disposition for people serving serious offences who have completed part of their sentence in a higher category facility. People sentenced for very serious offences can apply to be moved once they ½ way through their sentences, and for serious and medium 1/3rd.

[12] http://ukodeksrf.ru/ch-1/rzd-3/gl-9/st-53-1-uk-rf

[13] https://16.fsin.gov.ru/podvedomstvennye%20ychrezhdenya/ic1.php

[14] http://www.zashita-zk.org/problem/1615761036.html

[15] https://gulag-info.ru/novosti/1444-chto-oni-trebuyut-my-vypolnyaem-a-s-ih-storony-tolko-odni-narusheniya-obraschenie-v-redakciyu-gulag-info.html?fbclid=IwAR1imXGT_tVEQqPJ0NE-92abXddcUA9UK_JRsWQ63dE20j97rqdvGrBn4Uk

[16] https://ospace.org/prinwork & https://fsin.gov.ru/ispravitelnye-tsentry/

[17] I am not the first to argue this. See, for example, V. M. Stepashin,  ‘Проблемы применения принудительных работ’   in  Вестник Омского университета. Серия «Право». 2015. no 4 (45). с. 156–161

[18] https://tass.ru/interviews/11626753

[19] Ibid

[20] https://www.kommersant.ru/doc/4728670

[21]  On 31 January 2020, there were 1,528,343 inmates in 51 prison administrations (out of 52) of the Council of Europe member states, which corresponds to a European prison population rate of 103.2 inmates per 100,000 inhabitants. Russia has an imprisonment rate of 325.3/100 000 on 1st July 2021. According my calculation, subtract 180,000 from the current prison population will give Russia 196.5/100000 putting it almost on a par with Poland.

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