Disciplinary measures

Analysis

Security within the establishment

Detaining authorities are responsible for ensuring security within their establishments. The implementation of this responsibility may be achieved through a combination of measures: physical means (surrounding walls and other architectural features designed to prevent escapes), operational procedures (classification of detainees, searches, etc.), and  “proactive security”.

The disciplinary system in place is an essential component of security. It enables prison life to be organised and regulated by identifying behaviours which constitute infringements to the rules of communal life, and by establishing sanctions in case these rules are violated.

The disciplinary regime must be considered first and foremost as a set of rules for living and behaviour that make it possible to organise prison life. Disciplinary measures must only be used as sanctions for offences to the disciplinary system in place.

Sanctions as a last resort

Detaining authorities have means other than just sanctions to ensure that discipline is respected. “Proactive security” is principally about the development of positive relationships between staff and detainees, and is based on the knowledge of the detainees’ individual situation and of their needs, as well as of any risks they may present. The attention given to the needs of detainees is thought not only with a view to social rehabilitation, but also to maintain order and security within the prison establishment.
Detaining authorities should always favour alternative methods of settling disagreements (exchanges, dialogue, mediation, etc.) and resort to sanctions only as a last resort for the most serious infractions and/or when other methods have failed.

The sanction must be understood by the detainees and implemented by the authorities above all as a way of ensuring order and security and not as a punishment for deviant behaviour.

The principle of legality

The principle of lawfulness constitutes a fundamental guarantee to prevent the disciplinary regime from being used in an arbitrary manner. The law must define:

  • the behaviours that constitute offences
  • the sanctions identified for each type of offence
  • the procedures
  • the means of appeal

The law must also specify that detainees may not be sanctioned twice for the same offence.

Sanctions and measures must be clearly identified

The law must list and define precisely the behaviours that constitute disciplinary offences and the sanctions associated with them.

Offences are often classified into two or three categories according to their seriousness. This classification is specific to each country. Although it is not possible to provide an exhaustive list, a certain number of commonplace offences can be identified:

  • acts or attempted acts of physical violence against prison staff, visitors from the outside or on co-detainees;
  • any individual or collective action that could compromise the security of the establishment;
  • acts of intimidation (insults, threats, etc.) against prison staff, visitors from the outside or co-detainees;
  • escape or attempted escape;
  • destruction or attempted destruction or theft of goods belonging to others;
  • destruction or attempted destruction of premises or material belonging to the prison;
  • possession or trafficking of prohibited goods /substances;
  • refusal to obey a lawful order;
  • attempted corruption;
  • disturbance or attempted disturbance of work, in training sessions, or during cultural or leisure activities.

It is impossible to draw up an exhaustive lift of sanctions inasmuch as the decision on their use depends largely on the prison practice and culture in different countries. However, a certain number of sanctions may be identified:

  • a warning or a reprimand;
  • loss of privileges (access to the library, communal activities, reduction in contacts with the outside world, etc.);
  • not being allowed to go to the prison shop;
  • repair of goods that have been damaged;
  • fines;
  • extra work;
  • solitary confinement.

The principle of proportionality means that the sanctions must be in line with the seriousness of the disciplinary offence. The more serious this is, the more severe the sanction. In the same manner, the more potentially severe the sanction, the more procedural guarantees must be in place to protect the detainees’ rights.
 

children
Prohibition of certain forms of disciplinary sanctions

Certain disciplinary sanctions must not be inflicted on certain categories of detainees. Detainees who are minors must not be subjected to solitary confinement. Sanctions applied to them must not involve deprivation or restriction of their training activities. No disciplinary sanction can justify preventing a minor from seeing his/her parents.

The right to information

In order to ensure respect for the disciplinary regime, it is important that detainees are duly informed of their rights and duties and of the associated sanctions.
This information must be provided to detainees as soon as they arrive in the prison establishment. Detainees must receive a copy of the internal regulations in a language they understand. The document given to them must also specify how the disciplinary procedure works and the rights of detainees regarding this procedure.
The internal regulations must also be posted in various places within the prison: in cells or dormitories, workshops, the library, the canteen, training rooms, etc.

Procedural safeguards

The authorities must set up procedural safeguards to allow the people concerned to be informed of the charges made against them, to prepare their defence and, if necessary, to appeal against the decisions taken. Moreover, respect for these procedural guarantees must be subject to inspection by the management hierarchy within the establishment.

The settling of differences must be subject to oversight by the management hierarchy within the establishment.
All disciplinary sanctions must be subject to inspection by the management hierarchy. This is principally to ensure that the procedural rights of detainees subject to such procedures are respected. This control may be carried out at various stages in the procedure. It may also be done afterwards if an appeal is made by the person subject to a sanction.

Any disciplinary sanction must be recorded in a register, including the type of offence, the duration of the measure and the person who has imposed it.
People subject to a disciplinary procedure must be informed as soon as possible that a formal procedure has been brought against them. At that time, the detainees must be informed of the accusation made and the possible sanctions. Detainees must also be reminded of their right to legal assistance.

For the more serious offences (physical violence, escape attempts) leading to severe sanctions such as, in particular, being put in solitary confinement, the people concerned must have a right of formal appeal to a higher level.

women
foreigners
disabilities
minorities
children
Discriminatory sanctions towards certain groups

There is a risk disciplinary measures may prove to be discriminatory towards certain individuals because of their alleged danger or because they belong (or appear to belong) to one group or another. It is therefore possible that detainees who are already subject to a detention regime may be routinely sanctioned more severely than other detainees. Similarly, if, for cultural or political reasons certain groups such as LGBTI people, indigenous or minority ethnic groups, foreigners, those belonging to a political movement, etc. are subject to discrimination, it is possible that they will be targeted to a greater extent by disciplinary procedures.

Given this risk, it is important that the management exercise effective control of the legality of disciplinary procedures, being especially aware of the usefulness of each procedure. Central administration may also play a role by comparing the statistics of sanctions for the different categories of detainees, and when necessary, if they find discriminatory practices do exist, take action by addressing these with prison staff.

Sanctions decided and applied by detainees

In some contexts the power to impose sanctions may be delegated to certain detainees who enjoy particular status within the prison. Such delegations of power must be forbidden and suppressed where they exist, as the prerogative to impose sanctions must remain exclusively in the hands of the authorities. Risks of abuse, discrimination and ill-treatment are very high when the imposition of disciplinary regime is no longer in the hands of the authorities.

Detainees who exercise the power of control and sanction, either formally or tacitly, over the rest of the prison population usually belong to dominant majority groups. It is therefore not unusual for detainees who do not belong to such groups to be the victims of discriminatory sanctions. As a consequence, the detainees who are physically weakest very often suffer from such situations. Similarly, detainees who belong to a minority political, racial or ethnic group may be the victims of discriminatory practices. The same is true of LGBTI detainees.

women
foreigners
disabilities
minorities
children

Detainees who have the power of authority and issuing sanctions, either formally or tacitly, over the rest of the prison population usually belong to the dominant majority groups. It is therefore not unusual for detainees who do not belong to this group to be the victims of discriminatory practices when carrying out this role of control and imposing sanctions. As a result the detainees who are physically weakest very often suffer from this form of control. Similarly detainees who belong to a minority political, racial or ethnic group may be the victims of discriminatory practices. The same is true of LGBTI detainees.