Complaints, inspection and legal aid are three areas where the Mandela Rules provide stronger guidance

On 7 October, the UN Office of Drugs and Crime held a high level launch of the Mandela Rules (to be adopted later this year) in the course of the 70^th session of the UN General Assembly. PRI’s Executive Director participated on the panel and provided an overview of three areas – complaints, inspection and legal aid – where the revised Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) provide new guidance for prison managers.

The Mandela Rules are the outcome of a three year process of reviewing the Standard Minimum Rules for the treatment of prisoners.  Usually known as the SMRs, these Rules have provided the main guidance for prison managers and prison departments since their adoption in 1955.  While they have provided a solid framework for running prisons, inevitably over time they have developed some weaknesses and gaps as thinking about best practice and human rights has changed over time.

During a technical session covering the main provisions of the Rules, Alison Hannah, PRI’s Executive Director, summarised provisions for complaints, inspections and legal representation. As many of the previous speakers had commented, it is one of the strengths of the Mandela Rules that they reflect and reinforce the principles of other international standards and good practice that have developed since the original Rules were drafted.

To take complaints procedures as an example: the SMR allowed prisoners to make complaints to the prison director or an inspector.  But all too often the complaint was ignored, dismissed or rejected, with little prospect of the prisoner being able to pursue it further.  The Mandela Rules change this in a number of ways:

• firstly, on admission, prisoners must be advised of their rights, including the procedures for making requests and complaints;
• secondly, complaints can be made on any day, not just a weekday;
• thirdly, the complaint can be made to a wider number of authorities – to the central prison administration, to an inspector during a prison visit; and to a judicial or other authority with power to remedy the situation.

These safeguards will enable a prisoner to make complaints in a way that is less likely to result in retaliation or intimidation; and is more likely to bring a result.

External oversight of places of detention is an essential requirement to reduce and prevent torture and other cruel or degrading treatment.  Rules 83 – 85 set out an additional layer of oversight through requirements for internal inspections by the central prison administration and external inspections by an independent body. Both are intended to ensure prisons are managed in accordance with the law, regulations, policies and procedures.  The provisions for inspections echo the principles of the Optional Protocol to the Convention Against Torture (OPCAT), widely accepted as the best way to prevent torture through:

• unrestricted access to the whole prison
• unannounced visits
• the right to hold private and confidential interviews with prisoners of their choice.

A further area in which the Mandela Rules protect prisoners through intervention of a third party is the right of prisoners to legal advice or legal aid.  Rule 61 states that prisoners shall have ‘adequate opportunity . . . to consult and communicate with a legal adviser of their own choice or a legal aid provider, without delay, interception or censorship and in full confidentiality on any legal matter in conformity with domestic law.’  This is a strong statement and very much in line with the UN Principles and Guidelines on access to justice in criminal justice systems, which state that legal aid should be available at all stages of the criminal justice process, not simply (as before) to help prepare their case for trial.

By opening up the prison system to greater external scrutiny, the rights of prisoners will be better protected.

However, the Mandela Rules will not only benefit prisoners.  The greater clarity and practical guidance set out in the new Rules will also help prison managers carry out their complex and often difficult responsibilities.  The new standards address some of the most challenging situations that arise in prison administration and implementation of them should be of benefit to both sides.

Further information

Read about the process so far and download a complete version of the revised text of the Standard Minimum Rules for the Treatment of Prisoners if the recommended revisions of the intergovernmental expert group are adopted.

On 19 October, PRI co-hosted a side-event at the UN General Assembly with the Mission of Switzerland to the United Nations in New York, the Anti-Torture Initiative (Washington College of Law), the UN Office of the High Commissioner on Human Rights and the American Civil Liberties Union. Watch the side-event online here.