Discipline and order shall be maintained with no more restriction than is necessary to ensure safe custody, the secure operation of the prison and a well ordered community life.
Key Elements
The disciplinary regime establishes the rules of prison life by listing breaches of the internal regulations and the sanctions associated with these. The existence of disciplinary procedures is essential to both the maintenance of order within prison establishments and the respect for the basic human rights of persons deprived of liberty.
Detainees must be familiar with the disciplinary rules and these must be respected by prison authorities. Sanctions for each offence must be provided for in law.
Recourse to disciplinary sanctions must be a last resort, and detainees must see that their right to fair treatment is respected.
Disciplinary sanctions which resemble forms of ill-treatment, as well as those arising from any kind of discrimination are forbidden.
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.
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.
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.
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.
Legal standards
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
Rule 36
Rule 37
The following shall always be subject to authorization by law or by the regulation of the competent administrative authority:
(a) Conduct constituting a disciplinary offence;
(b) The types and duration of sanctions that may be imposed;
(c) The authority competent to impose such sanctions;
(d) Any form of involuntary separation from the general prison population, such as solitary confinement, isolation, segregation, special care units or restricted housing, whether as a disciplinary sanction or for the maintenance of order and security, including promulgating policies and procedures governing the use and review of, admission to and release from any form of involuntary separation.
Rule 38
1. Prison administrations are encouraged to use, to the extent possible, conflict prevention, mediation or any other alternative dispute resolution mechanism to prevent disciplinary offences or to resolve conflicts.
2. For prisoners who are, or have been, separated, the prison administration shall take the necessary measures to alleviate the potential detrimental effects of their confinement on them and on their community following their release from prison.
Rule 39.1
No prisoner shall be sanctioned except in accordance with the terms of the law or regulation referred to in rule 37 and the principles of fairness and due process. A prisoner shall never be sanctioned twice for the same act or offence.
Rule 39.2
Prison administrations shall ensure proportionality between a disciplinary sanction and the offence for which it is established, and shall keep a proper record of all disciplinary sanctions imposed.
Rule 39.3
Before imposing disciplinary sanctions, prison administrations shall consider whether and how a prisoner’s mental illness or developmental disability may have contributed to his or her conduct and the commission of the offence or act underlying the disciplinary charge. Prison administrations shall not sanction any conduct of a prisoner that is considered to be the direct result of his or her mental illness or intellectual disability.
Rule 40
1. No prisoner shall be employed, in the service of the prison, in any disciplinary capacity.
2. This rule shall not, however, impede the proper functioning of systems based on self-government, under which specified social, educational or sports activities or responsibilities are entrusted, under supervision, to prisoners who are formed into groups for the purposes of treatment.
Rule 41
1. Any allegation of a disciplinary offence by a prisoner shall be reported promptly to the competent authority, which shall investigate it without undue delay.
2. Prisoners shall be informed, without delay and in a language that they understand, of the nature of the accusations against them and shall be given adequate time and facilities for the preparation of their defence.
3. Prisoners shall be allowed to defend themselves in person, or through legal assistance when the interests of justice so require, particularly in cases involving serious disciplinary charges. If the prisoners do not understand or speak the language used at a disciplinary hearing, they shall be assisted by a competent interpreter free of charge.
4. Prisoners shall have an opportunity to seek judicial review of disciplinary sanctions imposed against them.
5. In the event that a breach of discipline is prosecuted as a crime, prisoners shall be entitled to all due process guarantees applicable to criminal proceedings, including unimpeded access to a legal adviser.
Rule 43
1. In no circumstances may restrictions or disciplinary sanctions amount to torture or other cruel, inhuman or degrading treatment or punishment. The following practices, in particular, shall be prohibited:
(a) Indefinite solitary confinement;
(b) Prolonged solitary confinement;
(c) Placement of a prisoner in a dark or constantly lit cell;
(d) Corporal punishment or the reduction of a prisoner’s diet or drinking water;
(e) Collective punishment.
2. Instruments of restraint shall never be applied as a sanction for disciplinary offences.
3. Disciplinary sanctions or restrictive measures shall not include the prohibition of family contact. The means of family contact may only be restricted for a limited time period and as strictly required for the maintenance of security and order.
Rule 46
1. Health-care personnel shall not have any role in the imposition of disciplinary sanctions or other restrictive measures. They shall, however, pay particular attention to the health of prisoners held under any form of involuntary separation, including by visiting such prisoners on a daily basis and providing prompt medical assistance and treatment at the request of such prisoners or prison staff.
2. Health-care personnel shall report to the prison director, without delay, any adverse effect of disciplinary sanctions or other restrictive measures on the physical or mental health of a prisoner subjected to such sanctions or measures and shall advise the director if they consider it necessary to terminate or alter them for physical or mental health reasons.
3. Health-care personnel shall have the authority to review and recommend changes to the involuntary separation of a prisoner in order to ensure that such separation does not exacerbate the medical condition or mental or physical disability of the prisoner.
Rule 54
Upon admission, every prisoner shall be promptly provided with written information about:
[...]
(c) His or her obligations, including applicable disciplinary sanctions [...]
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 30
1. The types of conduct of the detained or imprisoned person that constitute disciplinary offences during detention or imprisonment, the description and duration of disciplinary punishment that may be inflicted and the authorities competent to impose such punishment shall be specified by law or lawful regulations and duly published.
2. A detained or imprisoned person shall have the right to be heard before disciplinary action is taken. He shall have the right to bring such action to higher authorities for review.
United Nations Rules for the Protection of Juveniles Deprived of their Liberty
Rule 66
Any disciplinary measures and procedures should maintain the interest of safety and an ordered community life and should be consistent with the upholding of the inherent dignity of the juvenile and the fundamental objective of institutional care, namely, instilling a sense of justice, self-respect and respect for the basic rights of every person.
Rule 67
All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned. The reduction of diet and the restriction or denial of contact with family members should be prohibited for any purpose. Labour should always be viewed as an educa- tional tool and a means of promoting the self-respect of the juvenile in preparing him or her for return to the community and should not be imposed as a disciplinary sanction. No juvenile should be sanctioned more than once for the same disciplinary infraction. Collective sanctions should be prohibited.
Rule 68
Legislation or regulations adopted by the competent administrative authority should establish norms concerning the following, taking full account of the fundamental characteristics, needs and rights of juveniles:
(a) Conduct constituting a disciplinary offence;
(b) Type and duration of disciplinary sanctions that may be inflicted;
(c) The authority competent to impose such sanctions;
(d) The authority competent to consider appeals.
Rule 69
A report of misconduct should be presented promptly to the competent authority, which should decide on it without undue delay. The competent authority should conduct a thorough examination of the case.
Rule 70
No juvenile should be disciplinarily sanctioned except in strict accordance with the terms of the law and regulations in force. No juvenile should be sanctioned unless he or she has been informed of the alleged infraction in a manner appropriate to the full understanding of the juvenile, and given a proper opportunity of presenting his or her defence, including the right of appeal to a competent impartial authority. Complete records should be kept of all disciplinary proceedings.
Rule 71
No juveniles should be responsible for disciplinary functions except in the supervision of specified social, educational or sports activities or in self- government programmes.
United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules)
Rule 22
Punishment by close confinement or disciplinary segregation shall not be applied to pregnant women, women with infants and breastfeeding mothers in prison.
Rule 23
Disciplinary sanctions for women prisoners shall not include a prohibition of family contact, especially with children.
European Prisons Rules
Rule 30
1. 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.
2. Prisoners shall be allowed to keep in their possession a written version of the information they are given.
3. 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.
Rule 56
1. Disciplinary procedures shall be mechanisms of last resort.
2. Whenever possible, prison authorities shall use mechanisms of restoration and mediation to resolve disputes with and among prisoners.
Rule 57
1. Only conduct likely to constitute a threat to good order, safety or security may be defined as a disciplinary offence.
2. National law shall determine:
a. the acts or omissions by prisoners that constitute disciplinary offences;
b. the procedures to be followed at disciplinary hearings;
c. the types and duration of punishment that may be imposed;
d. the authority competent to impose such punishment; and
e. access to and the authority of the appellate process.
Rule 58
Any allegation of infringement of the disciplinary rules by a prisoner shall be reported promptly to the competent authority, which shall investigate it without undue delay.
Rule 59
Prisoners charged with disciplinary offences shall:
a. be informed promptly, in a language which they understand and in detail, of the nature of the accusations against them;
b. have adequate time and facilities for the preparation of their defence;
c. be allowed to defend themselves in person or through legal assistance when the interests of justice so require;
d. be allowed to request the attendance of witnesses and to examine them or to have them examined on their behalf; and
e. have the free assistance of an interpreter if they cannot understand or speak the language used at the hearing.
Rule 60
1. Any punishment imposed after conviction of a disciplinary offence shall be in accordance with national law.
2. The severity of any punishment shall be proportionate to the offence.
3. Collective punishments and corporal punishment, punishment by placing in a dark cell, and all other forms of inhuman or degrading punishment shall be prohibited.
4. Punishment shall not include a total prohibition on family contact.
5. Solitary confinement shall be imposed as a punishment only in exceptional cases and for a specified period of time, which shall be as short as possible.
6. Instruments of restraint shall never be applied as a punishment.
Rule 61
A prisoner who is found guilty of a disciplinary offence shall be able to appeal to a competent and independent higher authority.
Rule 62
No prisoner shall be employed or given authority in the prison in any disciplinary capacity.
Rule 63
A prisoner shall never be punished twice for the same act or conduct.
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas
Principle XXII - Disciplinary regime
1. Disciplinary sanctions
Disciplinary sanctions, and the disciplinary procedures adopted in places of deprivation of liberty shall be subject to judicial review and be previously established by law and shall not contravene the norms of international human rights law.
2. Due process of law
The imposition of disciplinary sanctions or measures and the supervision of their execution shall be the responsibility of competent authorities who shall act in all circumstances in accordance with the principles of due process of law, respecting the human rights and basic guarantees of persons deprived of liberty as enshrined in international human rights law.
3. Measures of solitary confinement
The law shall prohibit solitary confinement in punishment cells.15
It shall be strictly forbidden to impose solitary confinement to pregnant women; mothers who are living with their children in the place of deprivation of liberty; and children deprived of liberty.
Solitary confinement shall only be permitted as a disposition of last resort and for a strictly limited time, when it is evident that it is necessary to ensure legitimate interests relating to the institution’s internal security, and to protect fundamental rights, such as the right to life and integrity of persons deprived of liberty or the personnel.
In all cases, the disposition of solitary confinement shall be authorized by the competent authority and shall be subject to judicial control, since its prolonged, inappropriate or unnecessary use would amount to acts of torture, or cruel, inhuman, or degrading treatment or punishment.
In cases of involuntary seclusion of persons with mental disabilities it shall be ensured that the measure is authorized by a competent physician; carried out in accordance with officially approved procedures; recorded in the patient’s individual medical record; and immediately notified to their family or legal representatives. Persons with mental disabilities who are secluded shall be under the care and supervision of qualified medical personnel.
4. Prohibition of collective sanctions
The imposition of collective punishments shall be prohibited by law.
5. Disciplinary competence
Persons deprived of liberty shall not be responsible for the execution of disciplinary measures, or for custody or surveillance activities, not excluding their right to take part in educational, religious, sporting, and other similar activities, with the participation of the community, non-governmental organizations, and other private institutions
24th General Report of the European Committee for the Prevention of Torture
Paragraph 126
Restorative confict resolution should be given priority over formal disciplinary procedures and sanctions. Disciplinary sanctions, if applied, should be governed by the principle of proportionality and imposed in full compliance with the relevant formal disciplinary rules and procedures, and not take the form of an unofcial punishment. Any form of collective punishment is unacceptable. In a number of establishments visited by the CPT, it was not uncommon for staf to administer a so-called "pedagogic slap" or other forms of physical chastisement to juveniles who misbehaved. In this regard, the CPT recalls that corporal punishment is likely to amount to ill-treatment and must be strictly prohibited.
Paragraph 127
The CPT wishes to stress that a juveniles contact with the outside world should never be denied as a disciplinary measure; nor should it be limited unless the disciplinary ofence relates to such contact.
Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa
25. Procedural and other safeguards
States should have in place, and make known, laws, policies and standard operating procedures, which accord with Member States’ obligations under the African Charter on Human and Peoples’ Rights and other international law and standards, to:
e. Set out the use of disciplinary measures against persons in police custody or pre-trial detention in law, policy and standard operating procedures, consistent with the inherent dignity of the person, humane treatment, and limitations on the use of force.
33. Persons with disabilities
a. v. States shall ensure that disciplinary actions take account of a person’s disability.
Questions for monitors
Is the disciplinary regime part of the prison law?
Are disciplinary offences and the associated sanctions listed in the law?
Which sanctions are most frequently used? Are informal disciplinary sanctions imposed by the authorities?
Is the legality of disciplinary procedures controlled?
Is a copy of the disciplinary regime made available to detainees as soon as they enter the establishment?
Are detainees aware of behaviours that constitute violations of the disciplinary rules and regulations?
What methods of resolving disputes are used by the prison staff before imposing a disciplinary sanction?
Is recourse to disciplinary sanctions used as a last resort?
Are disciplinary measures recorded in a register? Are the types of offences, the duration of the measure and the name of the person who imposed it also recorded in the register?
Are sanctions recorded in a register?
Are certain categories of detainees punished in a discriminatory manner?
May people who have been subject to sanctions appeal against the decision?
Is the power of control and imposing sanctions exercised exclusively by the detaining authorities?