Censorship of prisoners’ correspondence: how to eliminate unreasonable restrictions?
Censorship of mail correspondence of prisoners is one of the most extensive problems reported to human rights defenders from Belarusian prisons. Analyzing the practice, lawyer Pavel Sapelka compares it with the situation in prisons abroad, as well as considers the rules of national law in this area in the context of international human rights standards.
CORRESPONDENCE OF PRISONERS
Imprisoned persons lose their right to free movement, but they must still enjoy all the other human rights. One of them is the right to have contacts with their families. It is not only the right of the prisoner, but also the right of members of his or her family who did not commit any crimes and were not punished by deprivation of liberty and restriction of their rights. They retain the right to have contacts their loved ones who have been sent to prison. The prison administration is responsible, under both national and international standards, for the support and development of family ties.
The main international human rights instruments clearly speak about the general and universal nature of these rights: the Universal Declaration of Human Rights, Article 12: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence...” The International Covenant on Civil and Political Rights, Article 23: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
Prison administrations should initiate and maintain the most favorable conditions for prisoners' contacts with members of their families. This is a consequence of the right to family life and the provisions of Article 10 of the International Covenant on Civil and Political Rights: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”
All of the above reasons and arguments refer to the right of prisoners and their families to maintain a normal relationship whenever it is possible. “It is also in the operational interests of prison administrators to ensure that this happens. Prisoners who are able to maintain good contact with their families will have a greater incentive to observe the normal rules and regulations of prison life. They are also likely to be able to resolve practical and other domestic problems which cause them anxiety. Staff will also learn about aspects of the prisoner’s behaviour, life and character beyond the confines of the prison which will help them to treat each prisoner as an individual. [...] There are other forms of communication with family and close friends in addition to visits. One of the most important of these is by letter. In many jurisdictions prisoners are allowed to send a minimum number of letters at state expense while paying the postage on any additional ones which they wish to send. There is generally no operational need to place any restriction on the number of incoming letters which a prisoner may receive.”[i]
Until very recently, prisons outside Belarus preserved a tradition of censorship of all incoming and outgoing correspondence of prisoners. For this purpose, two main justifications were used. It was assumed that the prisoners could discuss escape plans or other violation of the prison rules with their correspondents. Another reason was the opportunity to “intercept” news that may be unpleasant for the prisoner.
“It is now generally held that there is no operational justification on security grounds for censoring all mail. It is extremely unlikely, for example, that a prisoner who is contemplating escape would be foolish enough to refer to this in a letter. At the same time, it is accepted that prisoners have the same right as other people to receive family news, good or bad, directly. For those prisoners who have been assessed as a high security risk it may be necessary to censor incoming and outgoing correspondence and also to have a list of approved correspondents. For other prisoners it should not be necessary to censor correspondence on a continuous basis. In most cases random or sample reading is likely to be sufficient. The authorities have a right to make sure that incoming correspondence does not contain any material which is forbidden such as weapons or drugs. Good practice in some countries is that all incoming correspondence is opened in the presence of the prisoner to which it is addressed. The member of staff checks that the envelope does not contain anything that is forbidden and then hands the letter to the prisoner without reading it.”[ii]
In accordance with the Criminal Executive Code, persons sentenced to imprisonment are allowed to receive and send letters and telegrams in unlimited numbers. Sending letters and telegrams is covered by convicts themselves. Correspondence received and sent by convicts, except for proposals, applications and complaints addressed to the authorities in charge of exercising government control and supervision of the penal institutions, shall be subject to censorship. Correspondence between persons held in correctional facilities, who are not close relatives, is prohibited.
The procedure of receiving and sending letters, telegrams and money transfers by convicts is determined by the internal regulations of correctional institutions.
According to typical regulations, sending and receiving letters and telegrams by convicts is not subject to any restrictions as to its number and is carried out only through the administration of correctional institutions. For this purpose, mailboxes are installed in designated areas, from which letters are daily removed for sending, except on weekends and holidays, by authorized officials. In prisons and in cell-type penal colonies, prisoners should hand letters to representatives of the administration of correctional institutions. The letters put into mailboxes or handed to a representative of the administration must be unsealed. Correspondence of prisoners, as indicated above, is subject to censorship. Letters from prisoners and messages received in their name, written with the use of cryptography, a cipher or using other conventions or jargon, as well as bearing traits of cynicism aimed at causing harm to legally protected rights of state bodies, public associations and individual citizens or containing information with a state or official secret shall not be forwarded to the addressee and are not returned to the convict. The violation is reported to the convict, then this correspondence is destroyed. This rule applies to telegrams with the same content.
The maximum period during which the message should go through censorship is not limited.
Such rules allow prison administrations to arbitrarily restrict the correspondence of prisoners, and the lack of effective mechanisms for appealing violations deprives both sides of the correspondence of any opportunity to challenge the administration's actions. The key aspect is the ability to destroy letters. Therefore, even going to court would not be an effective means of protection, because by the time of the trial the “subject of the dispute” itself would have been destroyed.
Another procedure is set for remand prisons of the Interior Ministry and the KGB. Delivery of letters and telegrams received on behalf of persons in detention, as well as sending their letters to addressees should be made by prison staff no later than three days from the receipt of the letter, with the exception of public holidays and weekends. If a translation of the letter in one of the official languages of the Republic of Belarus is needed, the period of delivery could be extended by the time required for the translation, but no more than seven days. Information on the death or serious illness of a relative or a close family member is reported to a person held in custody immediately after receiving the news.
Letters containing information that could prevent a preliminary criminal investigation or review by a court, as well as assist in the commission of the crime, made in secret writing, codes or containing state secrets or other secrets protected by law, are not sent to the recipient or persons held in custody, but handed over to a body conducting the criminal proceedings.
The convict’s correspondence with a lawyer is governed by the same regulations, that is, is subject censorship. This violates the lawyer-client confidentiality, depriving the prisoner of opportunities to minimize costs in corresponding with the lawyer.
Of course, the control over correspondence of detainees may be determined by the national law, and the right to privacy of correspondence of convicts may be limited, but the limitation of this right must be based on the law, pursue a legitimate aim and be necessary in a democratic society. Cases of unjustified restrictions on the right should be excluded, but this requires a clear and simple procedure of administrative and judicial review of the administration of correctional institutions. In addition, there must be a clearly set maximum period during which correspondence should be sent or delivered to the addressee.
In Ukraine, the issue of censorship of prisoners’ letters is regulated by the Ministry of Justice, which is in charge of correctional institution. Since 2013, there is a new Instruction on viewing the correspondence of persons who are in held in penal institutions and detention centers.
In contrast to the Belarusian prisons, in Ukraine, correspondence between prisoners who are not relatives is possible with permission from penal institutions and upon written request of the convicts.
Correspondence by convicts or persons taken into custody shall not be viewed in case it is addressed to the following bodies and authorities (it should be sent to the address within a day from the time of its writing):
- Commissioner on Human Rights of the Verkhovna Rada of Ukraine;
- European Court of Human Rights;
- Other relevant bodies of international organizations participated in by Ukraine;
- Authorized personnel of these international organizations;
- Prosecutors or defense counsel in criminal proceedings, which shall exercise their powers in accordance with the Criminal Procedure Code of Ukraine.
Correspondence received by convicts and persons taken into custody from these bodies and persons is not subject to viewing.
Letters made with the use of cryptography, encryption or using other conventions, written in illegible handwriting, as well as containing confidential information, will not be sent to the addressee, not handed over to the prisoner, but withdrawn. The violation is registered in a report and notified to the prisoner. The report, together with the seized letter, is stored by the administration of the correctional institution.
The period of delivery or sending of correspondence subject to inspection is limited to three days.
Letters with information about the death of family members or other communications concerning personal interests shall be immediately forwarded to the facility’s psychologist with a note “Letter of traumatic content” for immediate reporting to the recipients and providing them with counseling.[iii]
In the Russian Federation, correspondence received by and sent to convicted persons is censored by the prison administration. Correspondence with the court, prosecutors, the parent body of the correctional system, as well as the Commissioner for Human Rights in the Russian Federation, the Human Rights Commissioner in the region of the Russian Federation, the Public Oversight Commission, set up in accordance with the laws of the Russian Federation, the European Court of Human Rights is not subject to censorship. The convict’s correspondence with the lawyer or other person providing legal assistance on legal grounds is not subject to censorship, except in cases when the prison administration has reliable data that information contained in the correspondence is aimed at the initiating, planning and organizing a crime or engaging in its commission of other parties. In these cases, inspection of mail, telegrams and other communications is made by order of the head of the correctional institution or his deputy.
The period of delivery of correspondence is limited to three days, and in respect to letters in a foreign language to seven days.
To date, the Russian Ministry of Justice has prepared new regulations for correctional institutions, which obviously will take into account, among other things, the position of the Constitutional Court of the Russian Federation on issues related to the extension of the right to privacy of correspondence of prisoners.
It is clear that a more progressive, as compared with Belarus, nature of the rules on prisoners’ correspondence in the Ukrainian and Russian laws was the result of the implementation of European approaches and international standards of human rights in these countries.
[i] A Human Rights Approach to Prison Management: Handbook for prison staff. Andrew Coyle. International Centre for Prison Studies. London. 2002.
[iii] Instruction on organizing the viewing of correspondence of persons held in prisons and detention centers