CHANCELLOR OF JUSTICE AS THE PREVENTIVE MECHANISM condition at 5 to 10 minute intervals. Representatives of the PBGB noted that the duty of monitoring rests with security officials. As was mentioned above, guidelines for officials of the guard bureau of the public order department of the PBGB had not yet been established. The Chancellor repeated his recommendation to the Director General of the PBGB to ensure constant direct monitoring of a person in case of application of restraining measures and verify the person’s condition at least at 5-minute intervals, while also taking into account the situation of a specific person which may require uninterrupted monitoring. For this, the following should be defined clearly in internal documents of the institution: (1) whose task the monitoring of a restrained person is; (2) how the avoidance of a possible conflict of interest is ensured; (3) time intervals of monitoring, so as to ensure a sufficient frequency of monitoring depending on the condition of a person. The Chancellor pointed out that in order to ensure verifiability of compliance with these recommendations the circumstances of monitoring should be established in writing (e.g. included in a decision for the application of security measures or in an appendix to it). The PBGB replied that simultaneous use of restraining measures in respect of a person who has been placed in a separate locked room was an extremely exceptional occasion which normally does not happen. Usually, the application of restraining measures is terminated in case of placement in a separate locked room. If a person is dangerous to themselves, restraining measures may be used but in that case constant direct monitoring of a person at maximum 5-minute intervals is ensured. Circumstances concerning monitoring of a person are recorded in the form or a report on a separate sheet which is attached to the personal file as an appendix to the decision for the application of security measures. (3) The third range of issues assessed during the inspection concerned the use of handcuffs during escort of persons outside the centre and verification of whether recording of the relevant circumstances was in conformity with the law. The inspection visit of 6 May 2009 revealed that handcuffs had been used in case of escorting of persons outside the centre although the use of handcuffs was not indicated on the authorisation for stay outside the centre. On this basis, the Chancellor recommended that a decision for the use of handcuffs in case of a person’s stay outside the centre should be made in accordance with the requirements of competence, form and substantive legality. During the follow-up inspection on 30 September 2009, it could be seen from personal files that in case of the use of handcuffs the authorisation for stay outside the centre and the escort plan included a reference to a legal basis and a general justification (e.g. “behaviour could be unpredictable”). Thus, an assessment of a person’s behaviour was not related to factual circumstances which are taken into account in case of a risk assessment. On this basis, on 10 November 2009 the Chancellor made an additional recommendation to ensure compliance with the duty of reasoning in case of use of handcuffs, so as to indicate factual reasons for the use of handcuffs. The inspection of authorisations for stay outside the expulsion centre and the escort plans revealed that the reasons for the use of handcuffs were presented mostly very generally. In some cases only a reference to the legal basis was given as reasoning. Thus, on some occasions the justifications were not linked to the assessment of the risk of escape (e.g. a justification that a person’s behaviour had been arrogant) or objective circumstances characterising a person (e.g. an assessment that a person’s behaviour may be unpredictable). In some cases the justifications were irrelevant (e.g. a person’s background unknown, although the person had been in the centre for almost four months). In some cases, one element characterising a person had been given decisive importance (e.g. a person had a previous conviction). Therefore, on the basis of the reasoning given in the administrative acts it was not possible to prove or verify retroactively whether any assessment had taken place. Thus, the use of handcuffs in most cases was not based on aggregate assessment of different circumstances which, in turn, casts doubt on the lawfulness of the use of handcuffs. On this basis, the Chancellor recommended to ensure compliance with the principle of discretion and the duty of reasoning when deciding the use of handcuffs in case of a person’s stay outside the centre. The Chancellor also recommended the Director General of the PBGB to analyse the conformity of the definition of special equipment in the guidelines for escorting detained persons with the definitions provided under the Obligation to Leave and Prohibition on Entry Act. 33