Procedimientos de queja

Analysis

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.
 

women
foreigners
disabilities
minorities
children
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.

disabilities

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.

children

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

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.

foreigners
minorities

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.