Complaints procedures

Importance of effective complaints procedures

International standards provide that detainees should have the possibility of making complaints to prison authorities and independent bodies. This is an important right which also helps to ensure that other rights are respected in detention.

In the coercive environment of a prison, almost all aspects of a detainees’ life are regulated and controlled by the prison authorities. Issues which may seem insignificant in the outside world can take on great significance for persons deprived of their liberty. There is also the risk of abuse, including torture and other ill-treatment.

It is in the interest of both detainees and staff that complaints are resolved within the prison system and as close to the source of the grievance, to prevent them from developing into major issues and sources of friction. The most effective way is for staff to develop positive relationships with detainees, who will feel able to approach them informally regarding concerns. However, there will always be some issues that cannot be resolved at this level.

It is therefore important that prisons have formal procedures to allow detainees to register complaints about any aspect of their treatment or conditions in detention. Such procedures can help to foster trust in the system, ensure that rules and rights are respected, and prevent issues becoming sources of major trouble in the prison. They can also act as a deterrent for abuse. When applied in a fair and transparent manner, complaints procedures can benefit detainees, staff and prison management.

Information on making complaints

Upon arrival at the prison, detainees should be informed in writing of the procedures for making complaints (along with their rights, and the rules and procedures governing life in prison). These should be clear and understandable to both detainees and staff. Where it is not possible to provide each detainee with a written copy (for example for budgetary reasons) these should be printed and displayed where they can be regularly seen by all detainees. In practice, detainees are often not aware of the right to complain or the procedure to be followed to register a complaint, meaning they cannot avail themselves of these mechanisms.

Who can complain? 

Detainees should be able to make complaints individually or in a group (for example where a person makes a complaint on behalf of their family or on behalf of a group of detainees belonging to a certain ethnic/religious group). Detainees should be able to seek legal advice for making complaints and legal representatives should be able to register complaints on their behalf. Where detainees are not able to make a complaint, family members or any person with knowledge of the issue should be able to complain with their consent.

Procedures should also be in place to allow staff to lodge complaints to the prison authorities and external oversight bodies (e.g. regarding their working conditions or treatment by management or peers).

Complaints at different levels (internal complaints and independent mechanisms)

There is no one prescribed model of a prison complaints system: they can take different forms and comprise a variety of mechanisms. However, it is important that detainees can lodge complaints at different levels, including with:

• The director of the prison or officer authorised to represent them (internal complaints mechanism): they will be best placed to deal with the majority of complaints regarding issues of everyday life in the prison.
• The responsible authority outside the prison (e.g. regional/central prison administration): detainees should be able to appeal complaints decisions of the prison management and also complain directly to the higher authority (this is important when the complaint concerns the management of the prison itself).
• One or more independent outside bodies, such as inspectors of prisons, boards of visitors, national human rights institutions, ombudsman offices, or a judicial authority with the mandate to receive complaints from detainees: these should guarantee independence in the complaints machinery and can bridge differences between detainees and management. These bodies should visit  the prison, meet with detainees, and have access to information and the whole prison premises.

In some contexts, there are formal avenues for referral or appeal foreseen between different types of complaints mechanisms.

Confidential access and opportunity to complain   

Detainees should be able to make confidential internal complaints (i.e. without the knowledge of the person(s) against whom the complaint is made) to the prison director at least every week day. This can be ensured by providing the opportunity on these days for detainees to meet with the director of the prison. In addition, complaints boxes can be made available in discrete areas of the prison  which detainees access daily (for example on the landing of each accommodation unit). These should be opened at least each weekday by the director of the prison or their representative. The materials necessary to make a complaint (forms, pens, envelopes) should be freely available to all detainees without asking staff.

Detainees should also have the opportunity to complain freely and confidentially to independent oversight bodies, for example by post, telephone, through designated complaints boxes or in person during visits by these bodies to the prison. To protect confidentiality, communication with these bodies should not be intercepted (post should not be opened; telephone conversations & interviews in person should not be monitored). If boxes exist for complaints to these bodies, those complaints should be sent to, or collected by, the relevant organisation without being opened. In some prisons, detainees can lodge complaints with independent bodies on the internet.

It should be clear that detainees will not be punished for making any type of complaint (internal or external). Procedures should be in place to ensure that detainees do not suffer reprisals – either from other detainees or staff – for lodging complaints. Reprisals can include obvious punishment or subtle disadvantages, such as not having requests met by staff in a timely manner. Detainees who lodge frequent complaints can be particularly at risk of reprisals from staff.

There should be no factors (official or in practice) deterring complaints. For example there should be no disciplinary rules against making false complaints. In prisons where prisoner self-management systems operate, either formally or informally, persons involved should not be able to control access to complaints mechanisms.

Registering internal complaints

Each prison should keep a register of internal complaints, including information on the complainant’s identity, the nature of the complaint, the action taken, and the outcome of the complaint. Access to the register should be limited in order to ensure confidentiality (for example to the director of the prison and their representative(s)).

Statistics on the types of complaints made should also be kept and can provide a useful indicator to the management of areas of discontent within the prison. However, it should be borne in mind that there will always be some detainees who do not complain and statistics can therefore not provide a whole picture of the grievances in prisons.

Investigation and response to internal complaints 

Once received, each internal complaint should be registered and allocated to a particular service for follow up (if the complaint is against a staff member, then the service responsible for investigation should not be connected to them).

There should be clearly defined time limits for responding to complaints promptly and in a reasonable time. These should be set out in the information regarding complaints procedures. Any delays should be justified and detainees should be provided with information on how long the investigation is expected to take.

Detainees should be able to request and receive information on the procedural status of their complaint. Some prisons use complaint forms which create a numbered copy when filled in, for the detainee’s record and to assist them in following-up. The decisions regarding complaints should be communicated to detainees in writing along with the reasoning and information on the right to appeal.

Serious internal complaints and referrals

Complaints of torture or ill-treatment should be treated as priority and followed up immediately. In some prison systems, there is an obligation to inform higher authorities or independent bodies about complaints of serious abuse.

Matters that are criminal in nature should be referred to the competent authorities (e.g. prosecution service). However, referral does not automatically absolve the prison management from responsibility of investigating and taking appropriate internal action including to protect the complainant (for example suspension pending the outcome of disciplinary proceedings).

Death in custody

Every death in custody must be promptly referred to an independent and impartial body for investigation to establish the cause and manner of death, to provide information, including a death certificate, to the relatives, and to instigate criminal proceedings where indicated. Investigations of deaths in custody and remedial action will help to prevent future deaths.

Credibility and effectiveness of complaints system

For complaints procedures to have preventive effect, it is important that they have the trust and confidence of detainees and staff.  In practice, this is often lacking because complaints do not lead to investigations or results, or detainees do not hear back at all about complaints or fear reprisals. Staff may feel that investigations are not conducted fairly. In addition, corruption can interfere with access to complaints procedures or the outcome of investigations, rendering them ineffective.

There will sometimes be detainees in prisons who complain frequently about numerous aspects of their detention. This can be a form of resistance and a reflection of powerlessness and a broader feeling of injustice. Although complaints made by such persons can be easily dismissed as unfounded, it is important for the credibility of the complaints system and the protection of individual rights that each complaint is addressed properly.

Persons in situations of vulnerability

Persons in situations of vulnerability may face difficulties lodging complaints. The prison authorities should ensure they have the same possibility of lodging complaints as other detainees. Some prisons allocate one staff member as a focal point for helping detainees to fill in and file complaint forms and follow-up on progress. In addition, protection, support and counselling should be available to persons who report abuse.

Complaints mechanisms often rely on written information and submissions. Illiterate person and persons with mental disabilities or learning difficulties may need to have the procedure explained to them orally and require help in filling in forms.

Complaints mechanisms are often developed with adults in mind and may not be adapted to children’s age, capacity and vulnerability. Efforts should be made to develop child-friendly complaints procedures, which prioritise the best interests of the child and take into account the child’s views in addressing their complaints. Children should have these procedures clearly explained to them along with the possible consequences of making complaints. They may need extra assistance to make complaints and have the right to seek help from family, legal counsellors, and other actors such as NGOs. Guidance on making complaints should be available to persons assisting children upon request. Protection, support and counselling should be provided to children to lodge complaints about abuse.

Women in detention can be particularly vulnerable to violence and abuse. The Bangkok Rules provide that “women prisoners who report abuse shall be provided immediate protection, support and counselling...” and that protection measures should take into account specifically the risks of retaliation.

Foreign persons and those belonging to minorities or indigenous groups may have difficulties understanding and accessing complaints procedures due to language and cultural barriers (such as lack of knowledge of legal or administrative processes in the dominant culture of the country).They should be provided information on the procedure for making complaints in a language they understand. Interpreter services should be made available to assist persons who do not speak the language used in the prison to make complaints.

United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)

Rule 54

Upon admission, every prisoner shall be promptly provided with written information about:
[...]
  (b) His or her rights, including authorized methods of seeking information, access to legal advice, including through legal aid schemes, and procedures for making requests or complaints [...]

Rule 56

1. Every prisoner shall have the opportunity each day to make requests or complaints to the prison director or the prison staff member authorized to represent him or her.

2. It shall be possible to make requests or complaints to the inspector of prisons during his or her inspections. The prisoner shall have the opportunity to talk to the inspector or any other inspecting officer freely and in full confidentiality, without the director or other members of the staff being present.

3. Every prisoner shall be allowed to make a request or complaint regarding his or her treatment, without censorship as to substance, to the central prison administration and to the judicial or other competent authorities, including those vested with reviewing or remedial power.

4. The rights under paragraphs 1 to 3 of this rule shall extend to the legal adviser of the prisoner. In those cases where neither the prisoner nor his or her legal adviser has the possibility of exercising such rights, a member of the prisoner’s family or any other person who has knowledge of the case may do so.

Rule 57

1. Every request or complaint shall be promptly dealt with and replied to without delay. If the request or complaint is rejected, or in the event of undue delay, the complainant shall be entitled to bring it before a judicial or other authority.

2. Safeguards shall be in place to ensure that prisoners can make requests or complaints safely and, if so requested by the complainant, in a confidential manner. A prisoner or other person mentioned in paragraph 4 of rule 56 must not be exposed to any risk of retaliation, intimidation or other negative consequences as a result of having submitted a request or complaint.

3. Allegations of torture or other cruel, inhuman or degrading treatment or punishment of prisoners shall be dealt with immediately and shall result in a prompt and impartial investigation conducted by an independent national authority in accordance with paragraphs 1 and 2 of rule 71.

Body of principles for the protection of all persons under any form of detention or imprisonment

Principle 33

1. A detained or imprisoned person or his counsel shall have the right to make a request or complaint regarding his treatment, in particular in case of torture or other cruel, inhuman or degrading treatment, to the authorities responsible for the administration of the place of detention and to higher authorities and, when necessary, to appropriate authorities vested with reviewing or remedial powers.

2. In those cases where neither the detained or imprisoned person nor his coun- sel has the possibility to exercise his rights under paragraph 1 of the present principle, a member of the family of the detained or imprisoned person or any other person who has knowledge of the case may exercise such rights.

3. Confidentiality concerning the request or complaint shall be maintained if so requested by the complainant.

4. Every request or complaint shall be promptly dealt with and replied to with- out undue delay. If the request or complaint is rejected or, in case of inordi- nate delay, the complainant shall be entitled to bring it before a judicial or other authority. Neither the detained or imprisoned person nor any complainant under paragraph 1 of the present principle shall suffer prejudice for making a request or complaint.

United nations rules for the protection of juveniles deprived of their liberty

Rule 75

Every juvenile should have the opportunity of making requests or complaints to the director of the detention facility and to his or her authorized representative.

Rule 76

Every juvenile should have the right to make a request or complaint, without censorship as to substance, to the central administration, the judicial authority or other proper authorities through approved channels, and to be informed of the response without delay.

Rule 77

Efforts should be made to establish an independent office (ombudsman) to receive and investigate complaints made by juveniles deprived of their liberty and to assist in the achievement of equitable settlements.

Rule 78

Every juvenile should have the right to request assistance from family members, legal counsellors, humanitarian groups or others where possible, in order to make a complaint. Illiterate juveniles should be provided with assistance should they need to use the services of public or private agencies and organizations which provide legal counsel or which are competent to receive complaints.

United Nations Rules for the Treatment of Women Prisoners and Non - custodial Measures for Women Offenders (the Bangkok Rules)

Rule 25

1. Women prisoners who report abuse shall be provided immediate protection, support and counselling, and their claims shall be investigated by competent and independent authorities, with full respect for the principle of confidentiality. Protection measures shall take into account specifically the risks of retaliation.

United Nations Special Rapporteur on minority issues, Report to the General Assembly, 30 July 2015, A/70/212

Paragraph 60

Authorities must ensure that each prisoner is informed about and has effective access to complaints procedures regardless of language or any other obstacles arising from his or her minority status.

European prison rules

Rule 70.1

Prisoners shall have ample opportunity to make requests or complaints, without censorship as to the substance, to the director of the prison or other authority within the prison system and to a judicial or other independent authority with reviewing and remedial power.

Rule 70.2

If an informal alternative method of resolving a request or complaint seems appropriate, this should be tried first.

Rule 70.3

When complaints are made regarding ill-treatment or other serious human rights violations, informal methods shall not be considered.

Rule 70.4

Practical information about request and complaint procedures shall be communicated effectively to all prisoners.

Rule 70.5

Complaints relating to death or ill-treatment in prison shall be dealt with without delay and shall result in an effective investigation in accordance with Rule 55.

Rule 70.6

All requests and complaints shall be dealt with as soon as possible and through a process that ensures, to the maximum possible extent, the prisoners’ effective participation.

Rule 70.7

If a request or a complaint is rejected, reasons shall be provided to the prisoner without delay and, if the decision was made by the director or other authority within the prison system, the prisoner shall have the right to appeal to a judicial or other independent authority with reviewing and remedial power.

Rule 70.8

Measures shall be in place to ensure that prisoners can make requests or complaints confidentially, if they choose to do so.

Rule 70.9

Prisoners shall not be exposed to any sanction, retaliation, intimidation, reprisals or other negative consequences as a result of having submitted a request or complaint.

Rule 70.10

Prisoners may make a request or complaint personally or through a legal representative and are entitled to seek legal advice about complaints and appeal procedures and to legal assistance when the interests of justice require.

Rule 70.11

No complaint by a legal representative or organisation concerned with the welfare of prisoners may be brought on behalf of a prisoner if the prisoner concerned does not consent to it being brought.

Rule 70.12

The competent authority shall take into account any written complaints from relatives of a prisoner or any other person or organisation concerned with the welfare of prisoners.

Rule 70.13

The relevant prison authority shall keep a record of requests and complaints made, with due consideration to the principles of confidentiality and safety.

Principles and Best Practices on the Protection of Persons Deprived of Liberty in the America

Principle V – Due process of Law

All persons deprived of liberty shall have the right, exercised by themselves of by others, to present a simple, prompt, and effective recourse before the competent, independent, and impartial authorities, against acts or omissions that violate or threaten to violate their human rights. In particular, persons deprived of liberty shall have the right to lodge complaints or claims about acts of torture, prison violence, corporal punishment, cruel, inhuman, or degrading treatment or punishment, as well as concerning prison or internment conditions, the lack of appropriate medical or psychological care, and of adequate food.

Principle VII – Petition and response

Persons deprived of liberty shall have the right of individual and collective petition and the right to a response before judicial, administrative, or other authorities. This right may be exercised by third parties or organizations, in accordance with the law.

This right comprises, amongst others, the right to lodge petitions, claims, or complaints before the competent authorities, and to receive a prompt response within a reasonable time. It also comprises the right to opportunely request and receive information concerning their procedural status and the remaining time of deprivation of liberty, if applicable.

Persons deprived of liberty shall also have the right to lodge communications, petitions or complaints with the national human rights institutions; with the Inter-American Commission on Human Rights; and with the other competent international bodies, in conformity with the requirements established by domestic law and international law.

24th General Report of the European Committee for the Prevention of Torture

Paragraph 131

Efective complaints and inspection procedures are basic safeguards against ill-treatment in all places of detention, including detention centres for juveniles. Juveniles (as well as their parents or legal representatives) should have avenues of complaint open to them within the establishments' administrative system and should be entitled to address complaints on a confdential basis to an independent authority. Complaints procedures should be simple, efective and child-friendly, particularly regarding the language used. Juveniles (as well as their parents or legal representatives) should be entitled to seek legal advice about complaints and to beneft from free legal assistance when the interests of justice so require.

Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa

22. Torture and other cruel, inhuman or degrading treatment or punishment and other serious human rights violations in police custody and pre-trial detention

a. All persons deprived of their liberty shall have the right to lodge a complaint with a competent, independent and impartial authority with a mandate to conduct prompt and thorough investigations in a manner consistent with the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa.

37. Complaints mechanisms

a. States shall establish, and make known, internal and independent complaints mechanisms for persons in police custody and pre-trial detention.

b. Access to complaints mechanisms shall be guaranteed for all persons in police custody and pre-trial detention, without fear of reprisals or punishment.

c. Detainees shall have the right, and be provided with the facilities, to consult freely and in full confiden- tiality with complaints mechanisms, subject to reasonable conditions to ensure security and good order in the place of detention.

d. There shall be thorough, prompt and impartial investigations of all complaints and, where they are
well-founded, appropriate remedial action shall be taken without delay.

What internal and external complaints mechanisms are available to detainees in the prison? Are detainees informed of their right to complain and procedures to follow in a language they understand? Are they aware of these?

How is access to complaints procedures ensured (accessibility of complaints boxes and availability of materials)?

How often do detainees have the opportunity to complain to the prison director?

Is confidentiality ensured in the complaints procedures?

Are there procedures in place to prevent reprisals on detainees who make complaints? Are there any indications of reprisals?

Is there a register of internal complaints in the prison, what information does it include and who has access to it?

Are detainees able to request and receive information on the procedural status of complaints?

Are statistics on the type and number of complaints received? How many complaints were received in the past year/relevant period – what was the outcome of these?

Are there clearly defined and publicised time limits for responding to complaints promptly? Are these met?

Are complaints investigated expeditiously and impartially? Do they lead to action?

Are detainees provided with decisions regarding complaints in writing along with information on the right to appeal?

Where detainees, including those in situations of vulnerability, need assistance to access complaints mechanisms, how is this assistance provided?

If children are detained in the prison, are complaints procedures adapted to their needs?

Are interpreter services available to enable persons who do not speak the language used in the prison to make complaints?

Is support and counselling available to persons who report abuse?