The right to information is important for legal proceedings for persons in pre-trial detention (including the information required for an appeal) as well as when it comes to the rights, obligations and rules of life in detention.
The right to information is essential for all persons deprived of liberty since one cannot assert one’s rights if they are not aware of them. Contrary to the outside world, places of detention are characterised by de facto restriction regarding the access to information. Therefore, knowledge of one’s legal situation, including possibilities of appeal, as well as the establishment’s daily rules constitutes not only a right but also a way to limit vulnerability to abuse, injustice and discrimination. Good management of the place of detention will be facilitated if rights, obligations and rules are known by all.
The right to information must be especially guaranteed for certain categories of detainees who, for reasons of language, age, illness or intellectual disabilities do not have equal access to information. This should be the case even if it implies an effort or additional accommodations by the authorities.
The right to information relating to legal proceedings
The days immediately following arrest and transfer to a place of detention are the times when the detainees are the most vulnerable. Not only are the risks of being physically or verbally abused or mistreated greater but also the detainees are particularly disoriented and anxious because of the new circumstances. Personal property, including mobile phones, is confiscated and contact with the outside world is greatly reduced. Uncertainty as to their fate makes detainees dependent upon the information that is transmitted to them. Anyone placed in pre-trial detention should therefore promptly receive information concerning, at a minimum:
The right to legal counsel (including the possibility of being assigned a court appointed lawyer)
The right to know what charges have been brought against them
The right to know when they will appear in court
The right to contest their detention (habeas corpus)
The right to know the possibilities that exist for conditional release
The information mentioned above must not only be transmitted orally but must also be submitted in writing to the people it pertains to. These persons should be able to keep these documents for the duration of their detention. It is important that this information be transmitted clearly and, if necessary, with the help of drawings and symbols.
Foreigners, minors, persons living with physical or mental disabilities should receive this information in simple, adapted language that they understand.
Foreigners must be promptly informed of their right to get in touch with their consulate, with the help of an interpreter if necessary.
Persons charged must be informed promptly of what they are accused of in order to prepare their defence. This information includes a detailed description of the circumstances of the crime they are accused of and the legal classification of the crime (i.e. the gravity of the offence), and the minimum and maximum penalties provided by law. If the charges are modified, the detainee should be informed quickly. Detainees should be systematically informed of developments in their case file.
The accused persons or their lawyers should have access to the case file, in order to be able to contest the legality of their arrest or detention, and to be able to prepare their defence. This information may take the form of written documents, photographs or audio and video recordings. Access to the case file should be free (except for postal fees or photocopies).
The only restrictions regarding access to pieces of evidence in the case file should concern information that can pose a serious threat to the life or the fundamental rights of a third person or for reasons of safeguarding public safety (for example, if the information in question is a threat to national security). Such restrictions must be pronounced by a court or a judiciary authority and must be provided for by law.
The right to information related to rights, duties and rules in detention
For all detainees, regardless of the phase of their detention (pre-judgement or during the execution of the sentence) knowing one’s rights, duties and rules in the penitentiary establishment is an important right. It allows for limiting vulnerability to abuse and discrimination and contributes to maintaining certain fairness within the establishment. Moreover, if the rights, duties and rules are known by all, good management of the place of detention will be facilitated. To this end, the regulations (including information pertaining to practical aspects of life in detention such as schedules for access to showers, the telephone or the cafeteria) should be clearly posted and visible to all.
Information concerning rights, duties and rules should not only be given at admission but whenever necessary, including whenever any modifications to the rules are made. Detainees must be able to keep a copy of the document describing their rights and duties for the entirety of their incarceration. A written copy of the document enumerating disciplinary rules (what measures are taken for which infractions, including their duration) should be promptly made available to detainees. These documents must be given in a language that they understand.
Information concerning the detention regime is also essential to adapt to life in the establishment. This information should include the rulings that have led the authorities to place the prisoner in a particular type of detention.
In order to guarantee fairness during the enforcement of the sentence but also to promote reintegration and make detention more bearable, detainees should be regularly advised of the information in their individual files. This includes the right to know the exact length of their incarceration until they are released as well as the possibility of conditional release (and in what length of time). This information must be transmitted to the detainee as quickly as possible.
The detaineess should also be informed of the medical treatment available, schedule of access to the infirmary and medical examinations as well as existing measures to prevent communicable diseases.
Upon admission, but not only then, prisoners should be made aware of the procedures in place to contact close family and friends and grievance mechanisms whether they are internal or external to the establishment. Information concerning private or public organisations which can supply legal or other assistance should also be relayed and regularly updated.
The prisoners should also be informed of the medical treatment available, schedule of access to the infirmary and medical examinations as well as existing measures to prevent communicable diseases.
Upon admission, but not only then, prisoners should be made aware of the procedures in place to contact close family and friends and complaints mechanisms whether they are internal or external to the establishment. Information concerning private or public organisations which can supply legal or other assistance should also be relayed and regularly updated.
Groups in situations of vulnerability and the right to specific information
All information concerning rights, duties and rules within the establishment should be transmitted in a simple way that is adapted to particular situations, if necessary, in the form of symbols and drawings. The language must be one understood by the person concerned.
Language used to explain rights, duties and internal rules must be especially adapted to children, notably through drawings and understandable pictograms. The purposes of existing rules must be explained to them as well as any disciplinary sanctions.
Female detainees should receive information concerning specific care that they have access to as well as the possibility of gynaecological examinations and personal hygiene products available to them. They must also be informed of specific preventive health measures including HIV, sexually transmitted diseases and other communicable diseases as well as female pathologies.
Persons who speak a foreign language or a minority language must be informed in a language they understand or by an interpreter of their rights and duties as well as of the rules in place. The documents provided to all detainees must be in a language they understand and transmitted as quickly as possible. Foreigners must also be informed of the procedures in place to notify their consulate if they wish to do so.
For the blind, visually impaired, deaf or hearing impaired, information must be given with necessary adjustments made (for example, in Braille). For those with intellectual disabilities or suffering from mental disability, the mode of communication should be adapted so that the information is transmitted in the clearest and most intelligible way possible.
Legal standards (10) Print
Convention on the Rights of Persons with Disabilities
Article 13 - Access to justice
1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
Article 21 - Freedom of expression and opinion, and access to information
States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by:
[...] b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
Prisoners shall have access to, or be allowed to keep in their possession without access by the prison administration, documents relating to their legal proceedings.
Upon admission, every prisoner shall be promptly provided with written information about:
(a) The prison law and applicable prison regulations;
(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;
(c) His or her obligations, including applicable disciplinary sanctions; and
(d) All other matters necessary to enable the prisoner to adapt himself or herself to the life of the prison.
The information referred to in rule 54 shall be available in the most commonly used languages in accordance with the needs of the prison population. If a prisoner does not understand any of those languages, interpretation assistance should be provided.
If a prisoner is illiterate, the information shall be conveyed to him or her orally. Prisoners with sensory disabilities should be provided with information in a manner appropriate to their needs.
The prison administration shall prominently display summaries of the information in common areas of the prison.
Body of principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively, with information on and an explanation of his rights and how to avail himself of such rights.
A person who does not adequately understand or speak the language used by the authorities responsible for his arrest, detention or imprisonment is entitled to receive promptly in a language which he understands the information referred to in principle 10, principle 11, paragraph 2, principle 12, paragraph 1, and principle 13 and to have the assistance, free of charge, if necessary, of an interpreter in connection with legal proceedings subsequent to his arrest.
United Nations Rules for the Protection of Juveniles Deprived of their Liberty
On admission, all juveniles shall be given a copy of the rules governing the detention facility and a written description of their rights and obligations in a language they can understand, together with the address of the authorities competent to receive complaints, as well as the address of public or private agencies and organizations which provide legal assistance. For those juveniles who are illiterate or who cannot understand the language in the written form, the information should be conveyed in a manner enabling full comprehension.
All juveniles should be helped to understand the regulations governing the internal organization of the facility, the goals and methodology of the care provided, the disciplinary requirements and procedures, other authorized methods of seeking information and of making complaints, and all such other matters as are necessary to enable them to understand fully their rights and obligations during detention.
United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules)
1. Adequate attention shall be paid to the admission procedures for women and children, due to their particular vulnerability at this time. Newly arrived women prisoners shall be provided with facilities to contact their relatives; access to legal advice; information about prison rules and regulations, the prison regime and where to seek help when in need in a language that they understand; and, in the case of foreign nationals, access to consular representatives as well.
2. Prior to or on admission, women with caretaking responsibilities for children shall be permitted to make arrangements for those children, including the possibility of a reasonable suspension of detention, taking into account the best interests of the children.
Women prisoners shall receive education and information about preventive health care measures, including from HIV, sexually transmitted diseases and other, blood-borne diseases, as well as gender-specific health conditions.
United Nations Basic Principles and Guidelines on the right of anyone deprived of their liberty to bring proceedings before a court, WGAD/CRP.1/2015, 4 May 2015
Principle 7. Right to be informed
28. Any persons deprived of their liberty shall be informed about their rights and obligations under law through appropriate and accessible means. Among other procedural safeguards, this includes the right to be informed, in a language and means, modes or format the detainee understands, of the reasons justifying the deprivation of liberty, the possible judicial avenue to challenge the arbitrariness and lawfulness of the deprivation of liberty and the right to bring proceedings before the court and to obtain without delay appropriate remedies.
General Comment No. 2: Implementation of Article 2 by States Parties, 24 January 2008, CAT/C/GC/2
Certain basic guarantees apply to all persons deprived of their liberty. Some of these are specified in the Convention, and the Committee consistently calls upon States parties to use them. (…) Such guarantees include, inter alia, (…)the right of detainees to be informed of their rights, (…).
European Prison Rules
At admission, and as often as necessary afterwards all prisoners shall be informed in writing and orally in a language they understand of the regulations governing prison discipline and of their rights and duties in prison.
Prisoners shall be allowed to keep in their possession a written version of the information they are given.
Prisoners shall be informed about any legal proceedings in which they are involved and, if they are sentenced, the time to be served and the possibilities of early release.
Robben Island Guidelines for the prevention of torture and other cruel, inhuman or degrading treatment or punishment in Africa
States should ensure that all detained persons are informed immediately of the reasons for their detention.
24th General Report of the European Committee for the Prevention of Torture
Upon admission, all juveniles should be given a copy of the rules governing everyday life in the institution and a written description of their rights and obligations in a language and manner they can understand. Juveniles should also be given information on how to lodge a complaint, including the contact details of the authorities competent to receive complaints, as well as the addresses of any services which provide legal assistance.
For those juveniles who are illiterate or who cannot understand the language in the written form, the above-mentioned information should be conveyed in a manner enabling full comprehension.
Questions for monitors (13) Print
Are pre-trial detainees informed of the legal proceedings? If so, how is this information transmitted?
What kind of information do newcomers in places of detention receive? (Rights, duties and rules governing life in detention, etc.)?
Is the information received transmitted in written form? If so, can detainees keep these documents during the duration of their detention?
Is information concerning rights, duties and rules posted in the place of detention? If so, what kind of information is available and where is it placed? Is this information updated?
What kind of information is transmitted to convicted individuals (concerning charges brought against them, sentences incurred etc.)?
In which cases is certain information not transmitted to detainees? For what reasons?
Are detainees informed of measures taken to prevent communicable diseases, schedule of infirmary access and other medical issues?
Are those serving sentences informed of the possibilities of conditional release in a timely manner?
Is the information provided to detainees transmitted in an appropriate and intelligible language, if necessary with drawings?
Are foreigners informed of their right to contact their consulate?
Do foreigners or those who speak a minority language receive information in a language they understand? If so, how?
Do those who have an intellectual disability or who are mentally ill receive information in an appropriate way?
Do women receive specific information, notably concerning female medical concerns? If so, what is this information?