The right to information

All persons who are deprived of their liberty have a right to and need for good, understandable information. Access to quality information allows detainees to play an active role in safeguarding their own rights, in particular the right to effective remedy. It is therefore important to ensure that necessary information has been received and understood.

Good, up-to-date and accessible information can increase the sense of security and prevent both frustration and the risk of ill-treatment. National rules and guidelines,[1] binding conventions under international law[2] and recommendations from international monitoring bodies[3] underline how important it is for persons deprived of their liberty to receive the information they need and have a right to.

Good, up-to-date and accessible information can increase the sense of security and prevent both frustration and the risk of ill-treatment.

During the period 2014–2016, the Parliamentary Ombudsman’s National Preventive Mechanism (NPM) made 29 visits to police custody facilities, prisons, immigration detention centres, child welfare institutions and mental health care institutions for children and adults. In connection with its visits, the Parliamentary Ombudsman investigated whether those deprived of their liberty received information about their rights and about procedures and rules that they need to understand to adapt to life at the institution. Another focus area has been whether everyone, regardless of language skills, has received the necessary information in a language they understand.

Police custody facilities

The NPM visited six police custody facilities during the period 2014–2016. Based on evidence collected during these visits, the NPM made recommendations related to the right to information. According to the law, detainees shall be informed as soon as possible about the grounds for detention, and about their rights and duties.[4] The Parliamentary Ombudsman recommended to all custody facilities that detainees be provided with both written and oral information about their rights, in a language they understand, as soon as possible after their detention. It has also been specified that this should be documented in the custody log. Further it has been recommended that all detainees sign a declaration confirming that they have been informed about their rights in a language they understand. The European Committee for the Prevention of Torture (CPT) made a similar recommendation after its visit to Norway in 2011.[5] The Norwegian authorities replied that they would follow up the recommendation. None of the police custody facilities that the NPM visited during the period 2014–2016 had procedures to follow up the CPT recommendation.

All custody facilities have also been informed about the importance of giving detainees an opportunity to notify a lawyer regardless of the time of day. The Parliamentary Ombudsman found that the information brochure about detainees’ rights – which was prepared by the Police Directorate and is distributed to detainees – does not provide correct information on this topic. This was also stressed by the CPT after its visit to Norway in 2011.[6] Access to a defence counsel is a fundamental guarantee of legal protection that reduces the risk of torture and ill-treatment. Consequently it must be possible to notify a counsel regardless of the time of day.

Prisons

One of the main challenges identified in the 13 prisons the NPM has visited so far has been to ensure that foreign inmates receive information in a language they understand. Interpreters are often not used in communications with inmates, except for translating court documents. In several of the prisons, Google Translate was the only tool available to the staff to communicate with inmates who did not speak Norwegian or English. As a positive example, two prisons stated that they had an information video made for foreign inmates that was available in several different languages.

Many of the foreign inmates the NPM has spoken to expressed a high degree of frustration over not receiving or understanding important information on arrival. Some foreign inmates expressed that they had to rely on other inmates for information. Inadequate information about procedures and rights can contribute to inmates feeling insecure, especially foreign inmates who are often far away from their family and social network and can feel isolated due to lack of information. The Parliamentary Ombudsman has consistently recommended that the prisons use interpreters during admission interviews with inmates who do not have sufficient language skills in Norwegian or English.

In several of its prison visits, the NPM found that inmates have acted as interpreters for each other due to the staff’s lack of access to interpreters. In some prisons, inmates have helped translate during conversations about case processing and medical issues. Interpreters shall be used when needed to provide information about legal decisions and during medical consultations.[7] Confidentiality is especially important in these types of conversations. The use of interpreters can also be necessary in other conversations of a personal nature or where providing and receiving correct information is important. Other inmates can be considered used as interpreters when the information concerns general procedures and rules, or day-to-day messages. The staff must nonetheless always consider whether this practice can lead to, for example, problematic power relations between inmates.[8] The Parliamentary Ombudsman has stated that there is a risk associated with using other inmates as interpreters.

Trandum

During its visit to the police immigration detention centre at Trandum in 2015, the NPM found that detainees received little information during admission about rules and daily routines at the detention centre. An information pamphlet had been created in several languages about rights and duties while in detention, but most of the detainees stated that they had not been given written information about their rights upon arrival.

Deprivation of liberty pursuant to the Immigration Act is not the consequence of a criminal offence and does not constitute punishment. The detainees at Trandum are often in a very difficult life situation, with a high degree of uncertainty and unpredictability. Because of this, good information about rights and daily routines during detention is particularly important.

Mental health care institutions

During visits to mental health care institutions, the NPM has focused on the patient’s right to receive information about the legal basis for the use-of-force and a clear justification for the decision to use force, in addition to the right to appeal the decision. This is important in order to safeguard patients’ right of appeal.

In the administrative decision there should be a clear justification for the use of force. It must clearly describe how the statutory conditions for the use of force are met in each case, and a detailed description shall be provided about attempts to use milder means.[9]

Administrative decisions and record entries should contain a justification and detailed information about the grounds for the use-of-force.

Most of the hospitals the NPM visited had a practice whereby the patients received a schematic administrative decision on the use of force where the legal basis was stated, but no justification for why the decision was made. The justification was entered in the hospital records. In order to get information about the grounds, the patient had to request access to the records.

The Parliamentary Ombudsman has, in order to prevent arbitrary use of force, consistently recommended that all patients should be routinely informed, both orally and in writing, about the grounds for use-of-force decisions. Administrative decisions and record entries should contain a justification and detailed information about the grounds for the use-of-force. They also should contain information about attempts to use milder means. The patients should not have to request access to their own patient records in order to get information about the grounds for the decision on use-of-force.

Following multiple NPM recommendations related to the right to information and the use of force, the Directorate of Health clarified the legislation in a letter to all the supervisory commissions in Norway in autumn 2016. The letter highlighted patients’ right to information about decisions on the use of force, information about the right of appeal, and access to informational materials.[10] The Directorate has also recently stated that work is under way on a technical solution that will ensure that the record entry is always printed together with the decision.

[1] See, inter alia: The Regulations relating to police custody facilities Section 2-10, Guidelines to the Execution of Sentences Act Sections 3.4 and 4.1(a), the Patient and User Rights Act Section 3-2, the Regulations relating to rights and the use of force in child welfare institutions Section 7. Circular Q-19/2012 Guidelines to Regulations of 15 November 2011 relating to rights and the use of force in child welfare institutions (the Rights Regulations).

[2] The UN International Covenant on Civil and Political Rights Article 9 (2), the European Convention on Human Rights Article 5 (2).

[3] See, inter alia, the UN Standard Minimum Rules for the Treatment of Prisoners, Article 35; CPT Standards, p. 8, paragraph 16. The UN Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules) IV B. The European Prison Rules, Rule 30.1. The Bangkok Rules, Rule 2, and the Mandela Rules, Rules 54 and 55.

[4] The Regulations relating to police custody facilities Section 2-10, and the Norwegian Police Directorate’s circular 2006/14, Section 6.

[5] The CPT’s visit to Norway, CPT/Inf (2011) 33, page 14, paragraph 17.

[6] The CPT’s recommendation on this point was followed up by an amendment to the Director General of Public
Prosecutions’ circular 4/2006 of 24 March 2012.

[7] The Correctional Service, Foreign nationals in the Correctional Service. Handbook for staff, 2015, pp. 73–74.

[8] Ibid.

[9] The Mental Health Care Act Section 4-8 first paragraph.

[10] The letter from the Directorate of Health is published on the Parliamentary Ombudsman’s website:
https://www.sivilombudsmannen.no/aktuelt/tortur-forebygging/helsedirektoratets-oppfolging-sivilombudsmannens-besoksrapporter-20152016/ (in Norwegian only).