ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES
The Rule acknowledges that physical access to legal documents is a prerequisite to exercising
one’s rights. It also seeks to protect the privacy of a prisoner’s legal matters, which is particularly
important should a prisoner issue a complaint against a staff member of the prison.
The Essex group recognised that lockable cabinets may not be possible in a prison context, but
maintained that efforts can be made to maintain some privacy nevertheless. This implies that staff
are prevented from reading prisoners’ legal documents. In order to ascertain this, prisoners should
be allowed to be present while their cell is being searched. The latter policy has been established
as good practice, including in jurisprudence.191
It was further noted that legal files are increasingly stored digitally and this may require prisoners
being enabled to access them at a computer.
Legal documents were highlighted as one of the possessions that need to accompany a prisoner if
and when he/she is transferred.
Transfers
The Essex group noted the importance of guidance for prison administrations on the transfer and
transportation of prisoners. While this area has not been revised as such within the SMR review,
several provisions of other areas affect transfers directly.
The experts stressed that the obligations invoked when a prisoner is transferred apply regardless
of the agency or authority in charge of the transport means. This stems from the responsibility of
the state for anyone it deprives of their liberty.192 In this context, the participants also noted that
transport of prisoners must be carried out at the expense and under the direction of the public
authorities.193
The Essex group recalled that transfers must not be exercised with the intention of punishing,
repressing or discriminating the persons deprived of their liberty, their family or their
representative.194
Documentation/ notification
Rule 7(c) requires documentation of the day and hour of a prisoner’s transfer in the prisoner file
system. In addition, prisoners are to be afforded the right and means to immediately notify their
family or any other person designated. The experts stressed the importance of notification of the
prisoner’s legal representative of a transfer, invoking the term ‘any other person designated’ in
Rule 68.
This is supported by the Inter-American Commission on Human Rights who have maintained that
prisoners have the right to immediately communicate with their family or third parties when he/she
is going to be transferred to another prison.195
House of Lords, R. v Secretary of State for the Home Department Ex p. Daly, 23 May 2001.
191
UN General Assembly, 68th Session, Torture and other cruel, inhuman or degrading treatment or punishment: Note by
the Secretary-General, 9 August 2013, A/68/295, para. 31.
192
This is made explicit in the European Prison Rules 2006 (Rule 32.3). Paragraph 1 of this Rule refers to prisoners
being moved ‘to or from a prison, or to other places such as court or hospital’.
193
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, principle IX, 4. See
also SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment to Argentina, 27 November 2013, CAT/OP/ARG/1, para. 37.
194
IACHR Report on Persons Deprived of Liberty, para. 498 and 499.
195
Penal Reform International and the Essex Human Rights Centre
| 55
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents