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Prisoners have access to a robust and effective complaints mechanism. All complaints are dealt with in a timely manner with the outcome of decisions clearly communicated to the prisoner with a satisfactory resolution if the complaint is upheld.
Having access to robust and effective complaints mechanism is of particular importance for individuals detained in closed institutions in order to protect against human rights violations. A number of potential barriers to prisoners making complaints have been identified, including: the absence of an effective complaints system; the slow nature of complaints procedures and response mechanisms; feelings that the problems faced in prison are inevitable; distrust in the complaints system; feelings of shame; fear of reprisal; and absence of legal safeguards.[414]
According to the IPS, a new internal complaints system is expected to be introduced in Quarter 3 of 2019.[415] The Minister for Justice and Equality has reported that a number of changes are required for the new system, including: the need for additional personnel; changes to the prison rules; drafting of new policy documents; and a new ICT system.
Indicator S22.1: Data on the number of internal complaints, in particular 'Category A' complaints (upheld, resolved and dismissed), including the length of time it takes to complete and communicate outcomes of a decision to a prisoner.[416]
The table below shows that only 5% of Category A complaints made were upheld in 2018. In 2019, this rate slightly increased to 8% (at least up until June 2019). The average length of time it takes to investigate Category A complaint is 2.9 months.[417]
Category A complaints by outcome, 2018 and 2019[418]
| Category A complaints | 2018 | 2019 (to 12 June) |
|---|---|---|
| Complaints received (n.) | 80 | 25 |
| Upheld | 4 | 2 |
| Not upheld | 46 | 4 |
| Not proven | 4 | 0 |
| Terminated | 3 | 0 |
| Incomplete | 12 | 13 |
| Withdrawn | 9 | 0 |
| Part upheld | 0 | 2 |
| Not investigated | 2 | 4 |
In 2018, 30.7% of all other categories of complaints made by prisoners were upheld. Up until June 2019, a similar rate of 28.9% of complaints were upheld. The average length of time it takes to investigate all other complaints by senior management of the IPS is 1.5 months.[419]
All other complaints by outcome, 2018 and 2019[420]
| All other complaints | 2018 | 2019 (to 12 June) |
|---|---|---|
| Complaints received (n.) | 977 | 359 |
| Upheld | 300 | 104 |
| Not upheld | 309 | 101 |
| Not proven | 162 | 39 |
| Terminated | 98 | 26 |
| Incomplete | 108 | 89 |
A low proportion of Category A complaints made by prisoners were upheld in 2018 and to mid-2019. There is little detailed information available on reasons why complaints are held/not upheld, or the outcomes as a result of complaints being upheld.
Further publication and analysis of aggregate complaints data is required in order to ensure that the system is fully transparent and fair. As highlighted by the CoE (2018) on complaints mechanisms:
…a national system for compiling statistics on complaints, relevant proceedings and outcomes should be established. If the data are correctly gathered and analysed, it becomes possible to identify trends and develop future policies aimed at improving the functioning of the complaints mechanisms and the accountability of the authorities entrusted with the supervision and care of persons deprived of their liberty.[425]
Research examining prison accountability in England, Wales, Scotland and the Republic of Ireland has highlighted that not only should primary bodies involved in prison accountability be independent and robust, but that in order for prisoners to experience these bodies as legitimate, transformational changes in penal culture and internal prison power dynamics must be addressed.[426] This study identified similarities in the different complaints models, with problems experienced in securing prisoner confidence; this then negatively impacts on prisoner engagement with bodies designed to protect them. The authors argue that in order for any accountability framework to be fully effective, complaining needs to be viewed as a positive expression of purposeful activity.
In sum, the internal complaints system cannot be effective without conditions in place that support this process. Promoting a positive culture that allows prisoners' voices to be heard is important. The Minister for Justice will put in place a process to appoint a new Prisons Board and as part of this a new culture committee will be put in place.[427] Examination and focus on this issue could be part of its remit.
Under Dutch legislation, a Supervisory Committee must be appointed to each prison. Each supervisory committee is an independent and external body, consisting of members of the general public comprising a minimum of six members. It must include a judge, lawyer and social worker. The committee must take note of prisoner complaints and arrange for complaints to be dealt with.
A prisoner may file a complaint with their Complaints Committee, which is comprised of three members of their Supervisory Committee. The complaint must concern a decision taken on or behalf of the governor. Decisions taken by medical staff are not viewed as decision taken on or behalf of the Governor. The Complaints Committee will try to avoid a formal hearing where the Secretary of the Committee may hand over the complaint to a member of the Supervisory Committee (who is not on the Complaints Committee), with a request to try mediate between the prisoner and governor. The Complaints Committee will try to avoid a formal hearing through mediation.[421]
If the case is dealt with by the entire Complaints Committee, the prisoner and governor are invited to a non-public hearing. The prisoner is entitled to free legal aid and an interpreter, if required. After the oral hearing, the Complaints Committee must deliver on a decision within four weeks (or eight weeks, in exceptional circumstances). The details of the decision must be given. The decision must contain a report of the hearing. In it, it must mention that both parties can appeal the decision within seven days.
The Complaints Committee must find the complaint as (a.) fully or partly inadmissible (b.) unfounded or (c.) founded. The Complaints Committee can suggest financial compensation or measures such as extra call or visits.[422]
Similar procedures apply to the Appeals Committee to that of the Complaints Committee. The Appeals Committee can declare the appeal as fully or partially inadmissible or fully or partially rescind the decision made by the Complaints Committee.
A prisoner in the Netherlands can also lodge a complaint with the National Ombudsman.[423] This remit includes complaints about the Complaints Committee. The CPT have positively commented on the various approaches and ways that prisoners can make complaints in the Netherlands.[424]
Five basic principles for an effective complaints system, CPT (2018)[428]
| Action 22.1: | The IPS must meet its timeline of Quarter 3 2019 for the introduction of the new internal complaints system. |
|---|---|
| Action 22.2: | The IPS should include a detailed breakdown of complaints received and outcomes in its annual report. |
| Action 22.3: | The new ‘culture committee’ could examine how prison culture can be strengthened to improve confidence in the internal prisoner complaints system. |
Penal Reform International and Office for Democratic Institutions and Human Rights (2018), Guidance Document on the Nelson Mandela Rules, Point 136, p. 32, https://s16889.pcdn.co/wp-content/uploads/2018/07/Mandela-Rules-Guidance-Document.pdf.
Department of Justice and Equality (2019), ‘Parliamentary Questions, PQ 148, 30 January 2019’, http://www.justice.ie/en/JELR/Pages/PQ-30-01-2019-148.
‘Category A’ complaints are the most serious of complaints which are investigated by a person from outside the Prison Service. These complaints relate to allegations of assault or use of excessive force.
Houses of the Oireachtas (2019), ‘Dáil Debates, Prisoner complaints procedures, Tuesday 18 June 2019’, https://www.oireachtas.ie/en/debates/question/2019-06-18/233/.
Ibid.
Houses of the Oireachtas, Prisoner Complaints Procedures, Tuesday 18 June 2019, https://www.oireachtas.ie/en/debates/question/2019-06-18/233/.
Ibid.
Jacobs, P. and Lindeman, J. (2018), Analysis of National Law – National norms as regard to access of detained persons to the law and to court, Report on the Netherlands, http://www.prisonlitigation.org/wp-content/uploads/2019/07/WP2-National-report-NL.pdf.
Ibid.
Ibid.
Council of Europe CPT/Inf (2017) 1 Report to the Government of the Netherlands on the visit to the Netherlands carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 2 to 13 May 2016, https://rm.coe.int/16806ebb7c
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (2018), ‘Complaints mechanisms’, https://rm.coe.int/16807bc668.
Behan, C. and Kirkham, R. (2016), ‘Monitoring, inspection and complaints adjudication in prison: The limits of prison accountability frameworks’, The Howard Journal of Crime and Justice, Vol. 55, No 4, pp. 432–454.
Department of Justice and Equality (2018), ‘Statement by Minister for Justice and Equality, Mr. Charlie Flanagan T.D. accompanying the publication of the report by Inspector of Prisons pursuant to section 31(2) of the Prisons Act 2007 into allegations of wrongdoing in the Irish Prison Service’, http://www.justice.ie/en/JELR/Pages/PR19000206.
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (2018), ‘ Complaints mechanisms’, https://rm.coe.int/16807bc668.