Key Elements
All detainees have the right to send and receive mail and to make and receive telephone calls, except in very specific situations. Any limitations on this right should be done on legitimate grounds, in the least restrictive way and for the shortest time possible.
Telephone calls and correspondence are a particularly important means by which detainees that do not have family or friends that are able to visit can stay in contact with the outside world. These can include foreigners, and women and children detained in facilities far from their home. The ability to receive parcels can also be an important way for family and friends to assist in meeting detainee’s humanitarian needs.
Analysis
Telephone contact with the outside world
Detainees should be allowed to make and receive as many telephone calls as they can afford and is practicable. An initial call upon arrival to inform family and friends should be at the expense of the state. In the case of indigent detainees, consideration should be given to waiving or reducing call costs so they are not deprived of contact with the outside world.
Making and receiving calls may be restricted on operational grounds. Calls may be limited to certain times during the day, although there should be some flexibility for detainees that have family or friends in different time zones (for example, foreign nationals) or after working hours, as detainees (often women) may have family that are not home until later. The duration of calls may also be restricted to ensure all detainees have equal opportunity to access the phone.
There should be an appropriate number of telephones provided so that detainees are not forced to wait long periods to use the phone. Consideration should be given to appropriate positioning of telephones: they should be freely accessible by all, including detainees with a disability, and ideally in an area that affords some privacy. However, the telephone should not be located such that other detainees can bully or intimidate those using the phone or demand payment in return for telephone use.
Monitoring telephone calls
Detaining authorities may monitor telephone calls in the interests of the safety and order of the detention facility – for example, where authorities suspect the detainee is involved in illegal activity. Such monitoring must be authorized by the management of the prison and should be done on grounds that a reasonable suspicion exists that illegal activity is taking place.
Detaining authorities may terminate phone calls if they believe on reasonable grounds that the call could interfere with the course of justice or compromise the security of the prison. To provide a safeguard against arbitrary interference with privacy, records should be kept of actions taken relating to monitoring calls, including any actions to terminate calls and the reason for doing so. These records should be kept for a specified period of time and accessed only by those with specific authorization.
Telephone calls with ‘protected persons’ (for example, lawyer, Ombudsperson, Human Rights Commission, Parliamentarian, Judge) should always be confidential and should be allowed to take place as often as required although this is subject to some operational limitations. Confidentiality of telephone calls means that the calls must not be monitored, and the call facilities must be out of hearing of staff and other detainees. Any doubts the detaining authorities have about a lawyer’s credentials should be settled before communication begins.
Correspondence with the outside world
Detainees should be allowed to send as many letters as they can afford and no restrictions should be placed on the number of letters that can be received. Writing material should be provided for free or at minimal cost. Outgoing mail should be posted in a timely manner (within 24 hours on weekdays, and 48 hours on weekends), and received mail should be transmitted to detainees within 24 hours.
Opening and censoring correspondence
In certain cases, the right to correspondence can be limited. Authorities may open and read, censor, or in extreme cases withhold detainee correspondence. Any interference with correspondence must be justified on grounds clearly set out in law or prison regulations, and any restriction must be done to achieve a legitimate purpose. This could include protecting the safety and security of the prison, preventing re-traumatization of a victim or interfering with an investigation or trial.
If opening mail is considered necessary for the safety and security of the prison in most cases random sampling should be sufficient to address these concerns, rather than opening all mail. As a safeguard, a supervisor or manager should have specific responsibility for opening and reviewing mail, and be bound by obligations of confidentiality. Where it is deemed necessary to read and censor or withhold particular prisoner’s correspondence this should be ordered by an independent authority such as a magistrate (see further, section on ‘pre-trial detainees’ below).
Both incoming correspondence from and outgoing correspondence to a protected person such as a detainee’s lawyer should be confidential. If authorities have reason to believe that contraband is contained within a letter from a protected person, or that the letter is not in fact from who it says it is from, the letter may be opened but this should be done in the presence of the detainee and the contents should not be read. The fact that protected mail is opened by authorities should be recorded in a register.
Parcels
Detainees should be able to receive parcels from family and friends. Limits may be placed by detaining authorities on the weight of each parcel and the total number each detainee may receive. Parcels containing items that are deemed by detaining authorities to pose a threat to the safety and security or to the maintenance of good order in the place of detention may be confiscated and either returned to the detainee when they complete their sentence, or disposed of. The detainee should be advised of this. Each place of detention should have a policy on parcels that clearly states what is permitted and procedures, and this should be made known to detainees and their families.
Pre-trial detainees
Pre-trial detainees are in a special situation with regards to communicating with the outside world. On one hand, communication should be as free as possible given their pre-trial status of innocent until proven guilty. Pre-trial detainees may have pressing needs to communicate with their lawyer about their legal situation, with their family and friends, as well as a need to manage their property or business affairs. On the other hand, there may be valid reasons to restrict communication – for example, a risk that that communication could interfere with an ongoing criminal investigation, intimidate witnesses or contribute to the commission of further offences.
Where authorities restrict pre-trial detainees telephone calls or correspondence on these grounds, the decision to do so must be made by a body independent of the prison, any restrictions must be limited to only those that are reasonably necessary, and the restrictions should be imposed for the shortest possible time and subject to regular review. Censorship should be done in a way that is the least restrictive possible (for example, blacking out words rather than not passing on the letter at all), and should be carried out in accordance with an established policy available to detainees and their relatives.
New technology
Where possible, detainees should be provided with access to email as it can be a cheap, easy and commonly used means of communication outside prison. Systems can be set up to address any security concerns (for example, allowing prisoners to send emails to pre-authorized recipients on secure networks). Such access can assist in preparing detainees for reinsertion in the community after release.
Detaining authorities should also be open to the opportunities presented by other new technologies such as skype calls as a means for detainees to connect with the outside world.
Correspondence and telephone access for groups in a situation of vulnerability
Women are often detained far from their homes, due to the relatively low numbers of female prisoners and few women’s-only prisons. As a result they may not receive many visitors and so access to telephone and mail is a particularly important way to stay in contact with their families and friends, and in particular, with their children in cases where women are separated from children. Allowing additional telephone calls for detainees that do not receive many visitors is one way to assist female detainees maintain contact with the outside world.
Detainees identifying as LGBTI often suffer significant discrimination within a prison, both from staff as well as from other detainees. This discrimination can result in denial of access to basic means of communication – for example, not being granted access to the telephone or writing materials. Detaining authorities should be mindful of this situation of isolation and discrimination and take measures to support contact with the outside world. For detainees with no such contact, authorities could, with the consent of the detainee take steps to connect them with non-government organizations that provide support services for LGBTI detainees or detainees generally.
Foreigners can experience particular isolation in prison, as they may not speak the language or receive many visits from family and friends. Access to correspondence and the telephone therefore takes on a heightened importance for them. Detaining authorities should seek alternate ways to ensure that foreign nationals are still able to maintain contact with their community – for example, providing additional or accumulated time to use the telephone, enabling them to call at hours that take into account the time differences, and where resources allow, financial assistance to cover the cost of international phone calls. Detainees should be charged the cheapest possible call rates for international calls.
Detaining authorities should be mindful of particular communication needs of detainees with a disability. For example, an inability to read mail unassisted, or difficulty using the telephone due to hearing impairment. Reasonable accommodation (for example, special writing material, or use of adaptive equipment for telephone calls) should be allowed so that detainees with disabilities do not suffer disadvantage. These services should be provided in a way that respects their right to confidentiality.
Telephones should be situated in a place within a prison that is physically accessible, or else particular assistance must be provided detainees with mobility issues. Access to the telephone is also important for illiterate detainees or those with illiterate family members. In this case, additional time could be allocated for telephone use to compensate for inability to make use of written communication.
Minorities and indigenous detainees may face particular isolation in prison. There may also be feelings of shame or rejection from their communities, which can negatively impact on detainee mental health and prospects for reintegration upon release. Detaining authorities can take steps to address this through measures such as allowing extended time for calls when they are received, and promoting contact with community groups outside the prison for example, to help build a sense of connection with the outside world. Where resources allow, they could assist with the cost of telephone calls or with the transport costs for family members to travel to the prison for visits. During contact with the outside world, indigenous detainees and detainees from other minority groups should be allowed to use their native language.
Children are often detained far from their parents and communities, due to the relatively low numbers of purpose-built juvenile facilities. Due to this distance, it can be difficult for family members to visit. Access to telephone, mail and other means of communication will be a particularly important way of maintaining the links between young people and their families that are so crucial for successful reintegration on release. For young detainees that do not receive many visits, there should be some flexibility in allowing additional telephone calls.
Legal Standards
Convention on the Rights of the Childs
Article 37
States Parties shall ensure that : […]
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.
International Convention on the Rights of Migrants and their families
Article 17
7. Migrant workers and members of their families who are subjected to any form of detention or imprisonment in accordance with the law in force in the State of employment or in the State of transit shall enjoy the same rights as nationals of those States who are in the same situation.
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
Rule 58.1
Prisoners shall be allowed, under necessary supervision, to communicate with their family and friends at regular intervals:
(a) By corresponding in writing and using, where available, telecommunication, electronic, digital and other means; and
(b) By receiving visits.
Rule 62
1. Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong.
2. Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.
Body of principles for the protection of all persons under any form of détention or imprisonment
Principle 19
A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.
UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules)
Rule 26
Women prisoners’ contact with their families, including their children, and their children’s guardians and legal representatives shall be encouraged and facilitated by all reasonable means. Where possible, measures shall be taken to counterbalance disadvantages faced by women detained in institutions located far from their homes.
United Nations Rules for the Protection of Juveniles Deprived of their Liberty
Rule 59
Every means should be provided to ensure that juveniles have adequate communication with the outside world, which is an integral part of the right to fair and humane treatment and is essential to the preparation of juvéniles for their return to society. Juveniles should be allowed to communicate with their families, friends and other persons or representatives of reputable outside organizations, to leave detention facilities for a visit to their home and family and to receive special permission to leave the detention facility for educational, vocational or other important reasons. Should the juvénile be serving a sentence, the time spent outside a detention facility should be counted as part of the period of sentence.
Rule 61
Every juvenile should have the right to communicate in writing or by telephone at least twice a week with the person of his or her choice, unless legally restricted, and should be assisted as necessary in order effectively to enjoy this right. Every juvenile should have the right to receive correspondence.
Rule 62
Juveniles should have the opportunity to keep themselves informed regularly of the news by reading newspapers, periodicals and other publications, through access to radio and television programmes and motion pictures, and through the visits of the representatives of any lawful club or organization in which the juvenile is interested.
European prison rules
Rule 24.1
Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.
Rule 24.2
Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.
Rule 24.3
National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted.
Rule 24.5
Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so.
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas
Principle XVIII: Contact with the outside world
Persons deprived of liberty shall have the right to receive and dispatch correspondence, subject to such limitations as are consistent with international law; and to maintain direct and personal contact through regular visits with members of their family, legal representatives, especially their parents, sons and daughters, and their respective partners.
They shall have the right to be informed about the news of the outside world through means of communication, or any other form of contact with the outside, in accordance with the law.
Robben Island Guidelines for the prevention of torture and other cruel, inhuman or degrading treatment or punishment in Africa
Guideline 31
States schould : […]
31. Ensure that all persons deprived of their liberty have access to legal and medical services and assistance and have the right to be visited by and correspond with family members.
24th General Report of the European Committee for the Prevention of Torture
Paragraph 124
All juveniles, including those on remand, should have frequent access to a telephone and the opportunity to exercise their right to correspondence at all times. If there are security concerns, particular telephone calls and correspondence could be monitored, and exceptionally prohibited. Any such decision should be based on a substantiated risk of collusion or other illegal activity, and be for a specifed period. In some establishments visited by the CPT, juveniles are allowed to communicate with family members on a regular basis by using free-of-charge Voice over Internet Protocol (VoIP) services. Such practices are highly welcome; however, they should not be considered as a substitute for visits.
Council of Europe, Recommendation CM/Rec(2012)12 of the Committee of Ministers to member States concerning foreign prisoners, October 2012
Contact with the outside world
22.1. To alleviate the potential isolation of foreign prisoners, special attention shall be paid to the maintenance and development of their relationships with the outside world, including contacts with family and friends, consular representatives, probation and community agencies and volunteers.
22.2. Unless there is a specific concern in individual cases related to safety and security, foreign prisoners shall be allowed to use a language of their choice during such contacts.
22.3. Rules for making and receiving telephone calls and other forms of communication shall be applied flexibly to ensure that foreign prisoners who are communicating with persons abroad have equivalent access to such forms of communication as other prisoners.
22.4. Indigent foreign prisoners shall be assisted with the costs of communicating with the outside world.
Questions for Monitors
Are detainees allowed to phone friends/relatives/ family? How often?
Are there sufficient numbers of telephones to meet demand from detainees? Are they positioned so as to be physically accessible and private from other detainees listening in to calls?
Are there arrangements in place for detainees without the ability to pay?
Is the cost of telephone calls, including international calls, the cheapest available and affordable for detainees?
Is monitoring of telephones done only for a legitimate purpose, and for a limited time?
Does communication with legal counsel and other “protected persons” take place without interception or censorship and in full confidentiality? Are letters to lawyers exempt from being opened?
What are the modalities for detainees to send and receive mail? Are correspondence materials (paper, pen, stamps etc) available and affordable?
Is mail received intact and in a timely way?
If mail is censored, is there an appropriate policy that sets out criteria for censorship, which is known by staff and detainees? Is there an appropriate policy for receiving parcels that sets out how many can be received, what contents are appropriate, and security measures applied to screening parcels?
Is there the possibility for special arrangements to be made, so that particular groups that may not get many visitors (such as women, children and foreigners) are still able to have meaningful contact with the outside world?