Contact in a Penitentiary Institution
A detainee’s contact with the outside world is a statutory entitlement arising from the penitentiary legal relationship, which may be exercised in accordance with the order of the penitentiary institution, the security of detention, and, in the case of a person held in pre-trial detention, the requirements necessary for the effective conduct of the criminal proceedings. The purpose of maintaining contact is to enable the detainee to preserve his or her family, personal and legal relationships during the period of deprivation of liberty, while the exercise of this right must not prejudice the security or order of the institution, or the interests of the proceedings.
The detainee may primarily maintain contact with his or her relatives, as well as with persons designated by him or her and registered by the penitentiary institution. Relatives are those persons falling within the category of relatives defined by the Criminal Code, namely direct-line relatives and their spouses or cohabiting partners, adoptive parents and foster parents, including stepparents living in the same household, adopted and foster children, including stepchildren living in the same household, siblings and their spouses or cohabiting partners, spouses, cohabiting partners, and the direct-line relatives and siblings of the spouse or cohabiting partner.
The exercise of contact is conditional upon the person concerned making the declaration of consent required for registration as an approved contact person. In the absence of such consent, contact with the designated person may not be authorised. The contact declaration is usually obtained through the penitentiary institution, or with the assistance of the reintegration officer, but the necessary declaration may also be submitted upon admission or during the procedure aimed at authorising contact. Following receipt of the consent, the penitentiary institution takes the necessary measures to register a relative as an approved contact person, whereas in the case of a person who is not a relative, authorisation requires a separate decision.
In the case of a person held in pre-trial detention, further restrictions may apply to contact. In order to protect the interests of the criminal proceedings, the authority exercising the right of disposition — depending on the procedural stage, the prosecution service or the court — may restrict or prohibit contact if this is necessary to ensure the effectiveness of the proceedings. Any such restriction must, in every case, be based on a specific procedural reason and may not be arbitrary or general in nature.
In addition to his or her relatives and authorised contact persons, the detainee may also maintain contact with his or her defence counsel and, in cases defined by law, with his or her legal representative. Contact with defence counsel has particular procedural significance, as it serves the exercise of the right of defence. Accordingly, the detainee may communicate with his or her defence counsel in writing, orally and in person, subject to compliance with the rules of the body enforcing the detention.
The main forms of contact are correspondence, telephone calls, contact by means of telecommunication devices, visits, and the sending and receiving of parcels.
Correspondence
Within the statutory framework, the detainee may send and receive letters. A letter is any item of correspondence containing an individual, personal written communication, including postcards and picture postcards. A letter may also contain a photograph or another enclosure permitted under the applicable rules. Any item which, by virtue of its content, does not qualify as a letter may be treated as a parcel.
Correspondence may be inspected in the interests of the security of detention. The purpose of inspection is to determine whether the item contains any prohibited object, information endangering the security of detention, or any content whose transmission is not permitted by law. Correspondence with official bodies specified by law, defence counsel, and certain fundamental-rights protection bodies is subject to stricter safeguards, and the substantive inspection of such correspondence is permissible only within the limits laid down by law.
Visits
Visits constitute one of the most important forms of personal contact. The detainee may receive visitors in accordance with the applicable category and regime rules. The duration and frequency of visits, the number of visitors, and the conditions of entry are governed by penitentiary legislation and by the internal rules of the given institution. As a general rule, visits take place at the place and time determined by the penitentiary institution. A minor visitor may generally enter the institution only when accompanied by an adult.
Where the order or security of the institution so requires, the visit may be conducted under enhanced security conditions, in particular in a secure visiting booth or under controlled circumstances. The visit may be monitored, and if the detainee or the visitor breaches the rules, the visit may be interrupted or terminated.
Telephone calls
The detainee may make telephone calls with the frequency and for the duration determined by law and by the internal rules of the institution. Telephone calls may be made only by using a device provided or authorised by the penitentiary institution. Telephone conversations — with the exception of communication with defence counsel or with another person protected by law — may be monitored in the interests of the security of detention and the order of the institution, and may be interrupted where justified.
Contact by means of telecommunication devices
Where the statutory conditions are met, the detainee may also maintain contact with his or her relatives or authorised contact persons by means of telecommunication devices. The frequency, duration and technical conditions of such contact are determined by penitentiary rules, the detainee’s category classification, and the technical capabilities of the given institution. Contact by means of telecommunication devices may be monitored, and if the order of the institution or the security of detention so requires, it may be interrupted. The persons concerned must be informed of the fact of monitoring or interruption.
Sending and receiving parcels
The detainee may receive and send parcels with the frequency determined by law. The penitentiary institution may inspect the contents of the parcel. As a general rule, food, toiletries, tobacco products, medicines or medicinal products may not be sent in by post, except in those cases specified by law where a medicine or medical aid required by the convicted person cannot be provided by the institution and its admission is authorised under the prescribed conditions.
A parcel containing food, toiletries or tobacco products may be compiled, subject to the statutory conditions and against payment, through the designated shop operating within the penitentiary institution or through the electronic platform established for this purpose. Items that cannot be handed over to the detainee are, in accordance with the applicable rules, placed in deposit by the institution, returned, handed over to the person entitled to receive them, or — where the statutory conditions are met — destroyed.
Legal remedy and complaint
Where, in connection with contact, a decision, measure or omission arises which infringes the rights or legitimate interests of the detainee or the contact person, a complaint may be submitted under the conditions laid down by law. The time limit for submitting a complaint and the procedure for its consideration are governed by the provisions of the Penitentiary Code.
A detainee’s contact with the outside world is a statutory entitlement arising from the penitentiary legal relationship, which may be exercised in accordance with the order of the penitentiary institution, the security of detention, and, in the case of a person held in pre-trial detention, the requirements necessary for the effective conduct of the criminal proceedings. The purpose of maintaining contact is to enable the detainee to preserve his or her family, personal and legal relationships during the period of deprivation of liberty, while the exercise of this right must not prejudice the security or order of the institution, or the interests of the proceedings.
The detainee may primarily maintain contact with his or her relatives, as well as with persons designated by him or her and registered by the penitentiary institution. Relatives are those persons falling within the category of relatives defined by the Criminal Code, namely direct-line relatives and their spouses or cohabiting partners, adoptive parents and foster parents, including stepparents living in the same household, adopted and foster children, including stepchildren living in the same household, siblings and their spouses or cohabiting partners, spouses, cohabiting partners, and the direct-line relatives and siblings of the spouse or cohabiting partner.
The exercise of contact is conditional upon the person concerned making the declaration of consent required for registration as an approved contact person. In the absence of such consent, contact with the designated person may not be authorised. The contact declaration is usually obtained through the penitentiary institution, or with the assistance of the reintegration officer, but the necessary declaration may also be submitted upon admission or during the procedure aimed at authorising contact. Following receipt of the consent, the penitentiary institution takes the necessary measures to register a relative as an approved contact person, whereas in the case of a person who is not a relative, authorisation requires a separate decision.
In the case of a person held in pre-trial detention, further restrictions may apply to contact. In order to protect the interests of the criminal proceedings, the authority exercising the right of disposition — depending on the procedural stage, the prosecution service or the court — may restrict or prohibit contact if this is necessary to ensure the effectiveness of the proceedings. Any such restriction must, in every case, be based on a specific procedural reason and may not be arbitrary or general in nature.
In addition to his or her relatives and authorised contact persons, the detainee may also maintain contact with his or her defence counsel and, in cases defined by law, with his or her legal representative. Contact with defence counsel has particular procedural significance, as it serves the exercise of the right of defence. Accordingly, the detainee may communicate with his or her defence counsel in writing, orally and in person, subject to compliance with the rules of the body enforcing the detention.
The main forms of contact are correspondence, telephone calls, contact by means of telecommunication devices, visits, and the sending and receiving of parcels.
Correspondence
Within the statutory framework, the detainee may send and receive letters. A letter is any item of correspondence containing an individual, personal written communication, including postcards and picture postcards. A letter may also contain a photograph or another enclosure permitted under the applicable rules. Any item which, by virtue of its content, does not qualify as a letter may be treated as a parcel.
Correspondence may be inspected in the interests of the security of detention. The purpose of inspection is to determine whether the item contains any prohibited object, information endangering the security of detention, or any content whose transmission is not permitted by law. Correspondence with official bodies specified by law, defence counsel, and certain fundamental-rights protection bodies is subject to stricter safeguards, and the substantive inspection of such correspondence is permissible only within the limits laid down by law.
Visits
Visits constitute one of the most important forms of personal contact. The detainee may receive visitors in accordance with the applicable category and regime rules. The duration and frequency of visits, the number of visitors, and the conditions of entry are governed by penitentiary legislation and by the internal rules of the given institution. As a general rule, visits take place at the place and time determined by the penitentiary institution. A minor visitor may generally enter the institution only when accompanied by an adult.
Where the order or security of the institution so requires, the visit may be conducted under enhanced security conditions, in particular in a secure visiting booth or under controlled circumstances. The visit may be monitored, and if the detainee or the visitor breaches the rules, the visit may be interrupted or terminated.
Telephone calls
The detainee may make telephone calls with the frequency and for the duration determined by law and by the internal rules of the institution. Telephone calls may be made only by using a device provided or authorised by the penitentiary institution. Telephone conversations — with the exception of communication with defence counsel or with another person protected by law — may be monitored in the interests of the security of detention and the order of the institution, and may be interrupted where justified.
Contact by means of telecommunication devices
Where the statutory conditions are met, the detainee may also maintain contact with his or her relatives or authorised contact persons by means of telecommunication devices. The frequency, duration and technical conditions of such contact are determined by penitentiary rules, the detainee’s category classification, and the technical capabilities of the given institution. Contact by means of telecommunication devices may be monitored, and if the order of the institution or the security of detention so requires, it may be interrupted. The persons concerned must be informed of the fact of monitoring or interruption.
Sending and receiving parcels
The detainee may receive and send parcels with the frequency determined by law. The penitentiary institution may inspect the contents of the parcel. As a general rule, food, toiletries, tobacco products, medicines or medicinal products may not be sent in by post, except in those cases specified by law where a medicine or medical aid required by the convicted person cannot be provided by the institution and its admission is authorised under the prescribed conditions.
A parcel containing food, toiletries or tobacco products may be compiled, subject to the statutory conditions and against payment, through the designated shop operating within the penitentiary institution or through the electronic platform established for this purpose. Items that cannot be handed over to the detainee are, in accordance with the applicable rules, placed in deposit by the institution, returned, handed over to the person entitled to receive them, or — where the statutory conditions are met — destroyed.
Legal remedy and complaint
Where, in connection with contact, a decision, measure or omission arises which infringes the rights or legitimate interests of the detainee or the contact person, a complaint may be submitted under the conditions laid down by law. The time limit for submitting a complaint and the procedure for its consideration are governed by the provisions of the Penitentiary Code.