“Right” or “Privilege”

This essay was presented to the second meeting from a series of meetings held by the Association for Defending Prisoners’ Rights, regarding the prisoners’ life conditions. This meeting was held on Sunday 23 Isfand 1383, coinciding 13 March 2005, in Tehran university of medical science, the health faculty amphitheatre.

By: Emadeddin Baghi
Translator: Alireza Jabbari
Proof-reader: Mohammad H Baghi
Leave, Visiting, blind Fold, handcuffs, and shackle prelude
This essay is divided into two separate parts, the first part being about the prisoners’ connection with the world outside; and the second one concerning blindfold, handcuffs, and shackle.
Cases of the prisoners’ connections with the outside world are: Visits, leaves, (the prisoners’ temporary residence in one’s house; making contacts by telephone or correspondence, reading newspaper(s), listening to the radio, watching television, and reading books. In some prisons abroad; for instance, in Tihar prison in India, prisoners are permitted to use internet and E-mail Facilities, too).1
In some countries, the prisoners are permitted to Visit Lawyers and the members of non-government organizations (NGOs) and human rights watches2. Paragraph No 81 of the minimum standard rules of conduct with prisoners is also regarding the access-ibility of the prisons and the prisoners for the non-government organizations (NGOs) and counseling with the prisoners concerning their future situation.
We will discuss the matters such as reading newspapers, listening to the radio, watching TV, in the forth meeting of the association, under the topic “personas’ cultural rights” and our discussion today regarding prisoners’ connections with the world outside is mostly focused on the matters as visiting prisoners’ relatives and the prisoners’ leaves.
Before delivering a report on the prisoner’s connection with the world outside, blindfold, shackle, and handcuffs, I want to propound a more essential philosophical and discourse matter, without which it is useless to proceed with the above – mentioned categories:
Is permitting the prisoners to be in contact with the world outside an indispensable human right of the prisoners or it is a privilege offered to them?Although the answer to the above-mentioned question maybe treated as self-explanatory from the lawyers’ Viewpoint, it is perceived as a privilege amongst the jailers in our society and some of the other third world societies , and as a right amongst them in progressive democratic societies.
The Problem
Research takes shape in one’s mind by experience, confronting with reality, observation and study; and the problem posed in this research is the result of some kind of conflict during the period of my imprisonment. In the first few months during that period, when numerous limitations, such as cutting prisoners’ visits with their families, stopping telephone contact with their relatives (that went on during our whole period of imprisonment period, except the first few months), preventing the entry of permissible bools and publications; and disputes on the refusal of wearing prisoners’ clothes, ect. Took place, the prison’s management.
Perceived excercizing such limitations as lawful and obligatory. When I argued with the prison managers, using the logic of law, and showed that their limitations and expectations are contradictory with their own rules, my remarks were hot at first believable for the prison’s chief; so, he went the opposite way, saying that what has been mentioned in this document on prisons affairs is mostly a privilege offered to the prisoners, but not their own right; and the prison management may offer this privilege as a reward, or grant it to them by any other reason, or it may deprive them of that privilege; and he added that they were not required to grant us such services and opportunities, as prisoners; and he said they might offer them to us or deprive us of them, whenever they wished to do so.
I, in turn, got into arguments that such services and opportunities might be perceived as prisoners’ rights, rather than privileges granted to them.
Theoretical basis
In modern philosophical thought, there exists some distinctions between “right” and “good”, “right” and “duty”. This distinction has its root in the difference between the utilitarianist and Kantian schools of thought. The fundamental and basic principle of the utilitanianism is maximizing citizens’ social welfare. This schoul of thought confronted with serious criticism; and Kant was one of its major critics; arguing that utility might not be perceived as a firm basis for rules. Kant made some distinction between “right” and “good”; between a framework for essential rights and what is perceived as “good” by the people.
Kantist philosophers treat “right” as prior to “good”; i-e, they firstly believe that the individual “rights” may not be sacrificed to the “good” of the public; and secondly are convinced that those principles of justice which define these rights may not be treated as desirable and permissible, according to a particular idea of life; Therefore, the aim here is not that of maximizing. Public “good” or “welfare”, but it is to build a framework in which the individuals and groups might choose their objectives and Values in such a way that it doesn’t interfere the others’ freedom.
Thus, the law which is based on the rights has different out comes from the law based on the utility; and in the contemporary world, the law based on the right has taken the lead of the opponent, and the utilitarian View according to which the rules of the prison may be perceived as privileges not as rights of the prisoners is an old and obsolete View.
Therefore, no factor may negate these rights of the prisoners; going on leaves and being visited by ones relatives is a right of the prisoners and they may only be deprived of it temporarily when it interferes the others’ freedom. For instance, if a criminal’s leave may interfere the others’ rights or if it may hurt them or put them into a danger, he may be deprived of it.
Punishment philosophy
The problem weather what has been considered by means of rules and regulations, for Iranian prisoners, may be perceived as a “right” or a “privilege” is related to a more fundamental philosophy. Some people ask: “Is prison somewhere like a hotel, that the prisoners may expect the jailers to provide them with the blessings of every kind in it? When you see the approved document of the first UN congress on “punishment of the criminals and preventing the crimes”, which was held in Geneva in 1955, the question may immediately cross your mind that while the prisoner is being kept in prison for the sake of committing a crime a murder, a misdeneamour or an unlawful financial deed, then, why should we put so much emphasis on the provisions of the very best conditions for the prisoners with respect to nutritions, clothing, light, recreation, and sports facilities, library and newspapers, health, cure, and cleanliness and tens of other free of cost service; and the prison management is required to observe them all? Is prison really a hotel that the conditions provided for by the sanctioned regulations and also the regulations approved by the prisons organization, if they are realized, may by preferred to living in a hotel. Is this a punishment or a reward?
The answer to this question lies enclosed with the punishment philosophy. The Classical traditional law was based upon physical punishment, which was, as Dorkheim says, aimed at imposing some pain or physical defect upon the criminal, and threatening his (other) wealth, life, or freedom.
In the modern society, however, the law amendments predominate. This means amending the affairs about the criminal, restoring his (or her) deranged relations, and reviving (or her) normal situation.
The essential aim of criminals’ imprisonment is to detain or disable them, thereby to make them stand aloof from the society. Alternatively, the individual causing threats, harms, or dangers for the society should not be annihilated, but should be kept aloof from the society and held in a bounded place, so that he (or she) can not damage other citizens or put their securities in danger. As the new legaliscience treats the concept of “criminal in itself” as rejected, developing programmes for retraining criminals and restoring their normal position should be set on the agenda, so that they could return to the society. It is a worth-while action to develop such progrmmes and to put them into action; because, some criminals are victims to arrange of family, social, spiritual, or even physiological causes and factors, independent of their wills; and each person might be a victim to such factors and causes in certain conditions; and if we were victimized to experience such conditions, would we choose to be annihilated or to endure such great tortures?
According to the punitive law, the prisoners should be punished; and he (or she) should bear such suffering and persecutions, until he (or she) gets free of crimes. From this point of view, whatever have been included in the approved UN document and the prisons’ regulations of Iran, are privileges granted to the prisoners. But, in view of the amended law, these are prisoner’s rights. Principle 57 of the approved UN document states: “Imprisonment, and the other measures taken to deprive the quality individuals from getting into contact with the world outside, negate their rights to make decisions, and divest them of their freedoms, and are painful; therefore, the prisons’ system should not increase the harshness of prisons’ conditions unless separation (differentiation) and classification of the prisoner maintaining the order is deemed necessary; and, in principle 58, it adds: “the aim and the reason for convicting individuals to prison, or similar punitive measures depriving them from their freedom is eventually protecting the society from crimes. This aim may only be ensured if the duration of individuals’ stay in prison is spent in such a way, that guarantees not only the criminals’ will, but also their ability to pass their lives, without breaking laws.”
From the punitive law’s stand point, there are essentially no rights reserved for the prisoners, so that we could demand their fulfilment; but the spirit of law in modern era, including in Iranian contemporary law, lies in the amended law, and the aim of any punishment(s) included in this law is reviving the prisoner. There are also some contradictory laws in the Iranian set of laws. Mean while, the criminals resemble sick persons that should be cured but not killed, in the modern punishment and imprisonment philosophy; and even if they suffer from some contagious and irremediable diseases as Black Leprosy, the management should provide all the life requirements for them, look after them, and attend them.
What is the reason for such an effect? If the Prisoners have nothing to lose, they will easily become aggressive, because the initiative to do any action to achieve relief, to release from monotonous ness of the prison, to revenge, etc is within their own hands. They have nothing to lose; and every thing that happens is a new event to them. We have observed many cases like that. For example, a prisoner who wasn’t on a leave for 5/5 Years, got into quarrel with the jailers consistently, and publishing writings against those who sent him to prison; These actions grew more aggravated, making his contacts with the world outside more difficult; and led the individuals Working on his case to the conclusion that if he were released he might bring about new problems; but when he returned to prison after the first time he went on a leave, his behavior changed, because he had something to lose now. He understood that if he continued his unrestfull behavior his visits, Leave would be cut; and his change of behavior a preamble For his conversion to open prison conditions.
Part one: contacts
With the outside world
With respect to the above-mentioned vision, the question may come to one’s mind weather prohibiting Prisoners from visiting their families and going on leaves, as a means for punishment, thereby isolating them from the society, may amend their illegitiate conducts or it may affect them with mental disorders? Isolation is a source of illusionism. An individual who has no active relations with the world outside, and no real subject matters and motivators for daily thoughts ever comes to his (or her) mind, uses his (or her) illusions as the source of one’s ideas and, some times, imagines one’s illusive mentalities as realistic thought.
Individuals’ isolation causes chronic depression in them, and has long range effects on their spirits’ and this contradicts the slogan written at the prison gates that means as follows: “prisons, security and training organization of the country”
Of course, one may not treat specific exceptional cases as a rule; for instance, seriously introvert persons, who provide for their quiescense in loneliness, may be treated as exceptional cases. Our imprisonment period experiences were also amongst such exceptional cases. Nearly 2 years of our imprisonment period was spent First in 4-person and then in 3-person cells then we were kept in closed 2- person cells. Those who placed us in such conditions, committed conducts which were quite contradictory with the prisons’ rules, because according to articles 9 and 10 of the prisons’ regulations, if we were criminals (that we certainly were not), we were to be kept in open prisons. The necessity of observing Security considerations was the reason by which they apparently Justified their unlawful attitudes towards us, but considering that they have also kept individuals similar to us in public blocks, this justification was devoid of truth and
I guess their aim was nothing more than affecting certain prisoners with depression.
In the conditions in which the coercive behavior towards recognized prisoners may result widespread outcomes for the regime, keeping the prisoners in isolated cells or closed prisons may cause depression and spiritual exhaustion, which may be more destructive than physical exhaustion.
But contrarily, such conducts were beneficial to us; For myself, being kept in isolation was beneficial from the affective view point, because months of living in public block and observing lots of some prisoners and their families, their separation from each other, and their suffering had badly affected me spiritually. The person who is a little affective, and finds him (or her-)self unable to solve the others’ problems, suffers from having such a position. Having the opportunity to study was also to our benefit, but canceling telephone contact with our families during the whole time we were imprisoned (except in 5 first months) and preventing them from visiting us was an injustice to our families.
Legal and Spiritual reasons
There exist other reasons to prove the rightousness of the right specified in the prisons regulations, including:
1- If a person were treated as a criminal, he (or she) should be punished by him (or her) self and not together with one’s family members; and being deprived from leaves and visits may be perceived as the punishment of the criminal’s relatives in dependence upon his (or her) punishment; and this is contrary with the principle of the personal nature of crime and punishment. According to this principle which is accepted in the legal systems all over the world, no one could be punished because of
another person’s crime, for any reason.
This principle is also distinctly mentioned in Qoran, where it says; “no one receives any result(s) other than what he obtains for one’s action against oneself; and no one bears the burdon of the other’s sins upon one’s shoulders (An a am, 164).
This is a justifiable legal reason; but not from a philosophy of law stand point. In other worlds, this statement is not a firm basis for righteousness, although it is admissible; because the fact that if the individual is unmarried and has no wife, children, or father and mother (I myself met some individuals of this kind) then he (or she) needs no visits and leaves; however, from the viewpoint of the philosophy of law, if we treat something as a “right”, then demanding its fulfilment is not depended upon accomplishing any other action. Thus, the prisoner, as a single person, disregarding weather or not he (or she) has a family or a relative, needs to get into contact with the outside world. As a result, from the stand point of the philosophy of law, the right to get into contact with the world outside is the same as the right to enjoy food, water and air, provision of which involves and depends upon no conditions, as having relatives.
After attaining the state of being a right, the argument that the prohibition of leaves and visits, would mean punishing prisoners’ relatives deserves attention.
2- From a psychological viewpoint, strengthening criminals’ sentiments and their family affections, is a way of retraining and curing them. Cutting prisoners contact with the world outside, leads to reducing their sentimental and family attachment whereas free and continuous telephone contacts, going on leaves, and visiting prisoners’ relatives prevent the break-down of their families and the increase in abnormalities and crimes and misdeminours and repress the criminal to be stead fast in committing crimes, and to extend their conducts to their family members. furthermore, the above-mentioned contacts cause the strengthening of their hopes to return to their families and to the society.
A basic reason given for the necessity to hold prisoners in a prison nearby their residence, is the easiness of their contacts and visits with their families.
Several ways of visiting there exits in prisons:
A- Visiting one’s relatives without direct contacts.
Through glass or articulate guards, which is specialized to dangerous prisoners.
B- Public visits in which the prisoners can visit their relatives and friends in a hall which is allocated to this purpose, and to get into direct contact with them.
C- In some prisons, including certain ones in Iran, for instance, in kerman prison, there exist suites or apartments, equipped with all kinds of facilities necessary for a 5 or 6 person family, in which the prisoners, can live together with their relatives for some days, there by strengthening their family affections the opportunities of such visits may be provided for, sometimes, up to 4 times a year; and the time a prisoner can enjoy such visits may depend upon the number of prisoners and the number of suites or apartments available.
D- The third kind of visits is visits with marital functions, which are called especial or canonical visits in Iran and are programmed in many countries.
3- From a spiritual standpoint too, Investigations conducted shows that depriving the prisoners from going on leaves and visiting their relatives, are in direct correlation with prisoners’ aggressiveness’ and their contacts with the world outside will reduce their aggressiveness. The prisoners who go on leaves or visit their family members are more relaxed, from one or two day before to one or two day after it; and their aggressiveness is also less in the same period. Therefore, jailers and the prison management may be less challenged in such a situation; and the prisoners’ contact with the outside world also affect spiritual improvement of they themelves, their families, the jailers, and the prison environment.
Instrumental use of law
What we mentioned beforehand was the positive side of the proposition; the side which is desirable both for the prisoners and the prison management. Using leaves and visits as a hush-money may also have a major negative side. For criminal, granting leaves, as a condition for not committing the crime again in the future is a natural and logical measure and places the right to enjoy leaves at the service of amnending criminals’ behavior; but it is common in the prisons all over the world that the jailers abuse the prisoners’ right to go on leaves and to visit their relatives as a means to convert some prisoners into tale-bearers. While a prisoner may have telephone contact whit his (or her) relatives, 3 minutes a day, some prisoners may give in tale-bearing to acquire more privileges.
Besides jailers, prisoners also abuse these opportunities. The most important channel for spreading opiums and entering prohibited objects to the prison are prisoner’s visits and leaves. Sometimes, the criminals may also use the telephone and correspondence facilities for accomplishing their special aims, but the prison management must not establish security controls or public prohibitions on prisoners’ ascribing such abuses to them. Some balance must be established between prisoners’ primary and security requirements; and only hearing or correspondence of the particular prisoners for whom exercising security regulations is necessary, should be allowed.
Granting leaves or visits to the political prisoners, especially to those who have committed no crimes other than exercising their own natural and legitimate rights to express one’s ideas and to carry on gatherings freely, to the aim of getting into transaction with them, however is a case of granting hush-money or instrumental use of the rights.
Unfortunately, in recent 1 – 2 years, we witnessed that such rights, has been utilitized as a means to offset and isolate some political and press prisoners; and whilst some others have elapsed much of their time in long range detensions, without committing any crimes, or verdicts have been issued sentencing them to imprisonment or any other kind(s) of punishments, they and their families have been persuaded to be silent, and prevented them from protesting against these unjust detentions.
“right” or “privilege” in the prisons’ regulations
A reason for treating prisoners rights as privileges, in the prisons regulations document, is that none of its phrases and articles emphasizes that prisoners’ rights are included in it.
The following line of argument may be considered in this respect:
1- with the same logic, one may argue that none of the phrases and articles of the regulations document emphasizes that even a part of it contains prisoners’ privileges.
2- The foundation of law-oriented ness is based upon citizens’ and humans “rights”, and not upon their privileges.
3- Ordinary laws and regulations are branches and minor parts of the constitution. A chapter of the constitution is named. “the rights of the nations’; and laws and regulations interpreting it and related to it are placed under the topic “rights”, themselves. Meanwhile, in the introduction to the constitution, the people’s severeignty is called the domitting principle of the whole law.
4- Iranian prisons regulations document coincides with the international rules and sanctions which follow the international declaration of human rights and interpret and detail it.
5- Each law is consisted of rights and duties. You can’t turn a duty over to a real or legal person, and expect him to undertake accomplishing it, without considering some rights for him, instead. Otherwise, no-one can assign any duty to him by law; and violating this rule means cancellation of the law.
Wherever there exist duties, there exist some rights to compensate it. The prisons’ regulations document isn’t also an exception; and if one denies the principle of considering some of its articles as rights, its duties will also be irrelevant and inexcutable.
6- Many points regarding nutrition, health, curing diseases, employment, education, etc are mentioned in the prisons’ regulations documents; the style of writing them all is the same. why should we treat some of them
as rights and the others as privileges?
Curing prisoners’ diseases is amongst their rights. Leaves and visits granted are also their rights. Some may say that nutrition and being cured have their roots in one’s right to live; but, prohibiting individuals’ contacts with the outside world, doesn’t mean putting an end to their lives; however, we may answer, a human life which deserves defending is not a plant life. Therefore, if we consider destructive moral effects of one’s deprivation of the right to contact with the world outside, and the resultant nervousness, which affect one’s social and cultural life, and if we assert our aim as amending the prisoners’ conducts whenever we disconnect them from the outside world, but the result is contradictory to our intended aim, the prisoners’ contacts with the outside world will be of the same nature as their right to be nourished, cured, and healthy. If we perceive the prisoners’ regulations document as based upon the rights, we may only assert that the prisoners’ rights has their own rates of intensity and mitigation and the rights to respire and to eat are not of the same importance as the right to spend one’s leisure time to the prisoners, but are all perceived as their rights.
It is necessary to remind that, in the Iranian prisoners’ regulations document, not only the rights to go on leaves, and to visit one’s family members, but also the right to visit one’s friends are recognized for the prisoners.
The logic of the human rights
Although the right to spend one’s leisure time has not been perceived as a right of the same value as the right to receive nutrients, from the viewpoint of human life in the world human rights declaration, but having the right to spend leisure time is also perceived as a right like respirating and eating foods and none of them may be treated as a privilege. If the necessities of biologic life were considered as criteria of treating some actions as right, many other actions, for instance, spending leisure time, the right to participate free elections, and the right to enjoy democracy, may be considered as privileges not as rights; but why should they be considered as privileges? And to whom these privileges may belong? Certainly, they may belong to the state and to those who own the power; but, why and according to what criteria should the state own such privileges? Is the state a body which descends another planet or is it a privileged body by its nature, whose members have superiority over the other citizens? The truth is that the statesmen are also the same as the ordinary citizens, who have acquired a special opportunity and have undertaken, certain responsibilities for a specified period of time, for some reasons; and as Imam Ali says, they are relay the people’s counsel and this can’t provide a particular privilege for them. Therefore, all of the world human rights declaration articles include the rights reserved for all citizens’ without any discrimination. The right to be employed, and the freedom to express one’s ideas, to participate in elections, to spend one’s leisure time, to choose one’s religions and to be on trials justly, are all amongst essential human rights. How can these rights be converted into privileges in the hands of the prisons organization as state’s representative, as it is asserted to be so in the prisons regulations?
In international human rights documents, prisoner’s visit with his family members is also perceived as a “right”. Principle 19 of “the collected principals supporting every person set under any kind of punishment or imprisonment”, says: “Each detained or imprisoned person should enjoy the right to go on a leave and to correspond with other people, especially with his (or her) family members.” Article 37 of the “minimum standard rules of conduct with prisoners” also says:
Prisoners should be allowed to visit and to correspond regularly with their relatives and their well-famed friends.3 Since what have appeared in “the prisoners’ regulations” and in the “minimum standard rules..” are perceived as the prisoners’ rights, then the paragraph 70 of the latter document has been allocated to the prisoners privileges, in which it has been mentioned: “An appropriate privileges’ system for different groups of prisoners, in conformity with various modes of conduct, should encourage good behavior, improve the since of responsibility, and strengthen the prisoners’ inclination to cooperation, in each prison.”
Therefore, separation of a paragraph under the name of “privileges” suggests that the other paragraphs express the rights, but not the privileges of the prisoners; and the privileges include: opportunities and methods for encouraging good behavior, and improving the sence of responsibility in the prisoners.
Conclusion:
According to our description, proving the contents of the documents regarding the prisons and the imprisonment regulations as being “rights” or “privileges” has very significant outcomes. IF they are perceived as “privileges”, then it remains no possibility to protest against lack of leaves, visits, telephone contacts, etc., or to hold meetings like ours, which will be irrelevant in such circumstances; but, if these advantages are treated as prisoners’ “rights”, then the right to follow them up and the expectation to put them into practice comes into existence. Furthermore, if respiration in the open air, visiting one’s relatives, going on leaves, telephone contacts, and the other advantages are treated as privileges, they will become tools for abusing the prisoners. Thereby, the prisoners are drawn into unpaid labor and tale-telling; and endangered. In many of democratic and free societies too, such abuses happen, and have nothing to do with the general structure of the society. Two factors may prevent this event. Firstly, it should be clear and understandable for the prisoners that the advantages inserted in the prisoners’ regulations are “rights” and cannot be taken away from the persons who don’t hold it. The only “right” which is taken away from prisoners by the order of law is their “right” to live in the society.
Secondly, there should be some control on the performance of the prison administrative system, especially by the civil institutions.
The negative aspects of going on leaves and visiting one’s relatives may be prevented by considering them as “rights”, meanwhile guaranteeing their positive effects on prisoners and their family-members. Alternatively, if the prisoners’ contact with the world outside were perceived as “privileges”, then somebody may refuse granting it to them easily, or he may transact it with them, or utilize it as a hush-money and a tool for exerting stress on the prisoners or their relatives; but, if it were as a “right”, utilizing it in such a way would loose its point; and preventing the prisoners’ contacts with the world outside, would mean negating their rights, would involve conviction, and is treated as a crime. These advantages are also “rights” with respect to unpolitical criminals, but if they involve negation of other citizen’s rights, and leads to others’ financial or physical losses or being hurt, then, they may be deprived of it.
Report:
One of the positive amendment of the prisons’ regulations, is that in the 207th article: “In cases where the prisoner has had a reasonable behaviour, according to the assessment of the prison’s responsible authorities, after passing two months of his (or her) conviction period, the chief of the judicial domain or the judge overseeing the prisoners, may grant him (or her) at most 5 days of continuous or discrete leave for each month.
Not 1: This leave might be extended 5 more days a month, if it were deemed necessary. Granting 5 to 10 days of leave in each month is a constructive and worthwhile action by itself, but in article 215 some exceptions to its applicability are included:
Article 215: “The convicts whose crimes are armed robbery, espionage, taking actions against the state security, setting up centers of corruption and prostitution, any kind of wickedness, kidnapping, and political crimes, and those kept in prison for enforcing their verdicts of relatiation, penance by the lash and / or execution, are excluded from going on leaves, unless by the determination of the justice department chief executive of the province.
Some points in article 215 deserve deliberation:
1- The political crime has been accepted in it for the first time. For many years it has been said that there are no political crimes and criminals in the Islamic Republic of Iran.
2- Political crime, espionage, and acting against national security are mentioned as three separate categories, and mostly perceived as press, ideological, and non-coercive crimes.
3- The most significant negative point in article 215, however, is that the political crimes are treated as having honest and altruistic motives, and the other crimes as having egoistic and dishonest motives; and these two types of crimes should be differentiated.
4- In this article, however, the way to grant leaves in exceptional cases is not closed, but the key to solve the problem has been given to the justice department chief executive of the province.
As we have found out, some prisoners who committed armed robbery or espionage, and were deprived of going on leaves by the regulations, received permissions to enjoy these right, or even to spend their conviction period in open prison conditions the prisoners’ situation with respect to enjoying leaves has totally been improved remarkably in 1383.
The last action taken by the chief of the judicial power was granting 1 month leaves to several thousands of the prisoners on the occasion of the mourning month of Moharram. These leaves were extended until 20 Farvardin, 84; but, some of the political prisoners were deprived of this opportunity; and to some others just one month of leave was granted and their leaves were not extended; and eventually some others enjoyed going on ten day leaves.
Much improvement has totally been achieved with regard to ordinary prisoners’ contacts with the world outside; and some political prisoners have recently confirmed this in their verbal reports. Political prisoners, excluding some of them, as Tabarzadi, Darab Zand, Davoodi, Mostafa and Peyman Piran Who, have not gone on leaves since their last detention, and Zarafshan, who has been on leave only once last year, have either been on leaves for one or two days a week, for alternate 5 days to one weeks, or for a week out of two months; and to still others the right to enjoy oper prison has been granted. Such actions are positive in nature; but, they should firstly, be generalized and include all of the prisoners; secondly, be more frequent and durable, and thirdly, the righteousness of the prisoners’ convictions be verified again, justly.
Although significant improvements have been achieved in the prisoners’ situations with respect to their leaves, but there are also cases causing concerns about them.
A financial prisoner, named Behmanesh, was deprived of the right to go on a leave, for eight years, until last year, when we were still a ware of him, although in the same case with him enjoyed open prison conditions; and he himself was a person of good behaviour and conducts.
Another financial prisoner, named Islam Kurdlar didn’t go on a leave for 17 years. His daughter was 1 year old, when he arrived in prison; but, several years later, when I met her, she was eighteen years old; and untile that time she had not been able to embrace his father in a natural family environment. I hope all such persons might have enjoyed the opportunities granted by the chief of the judicial power.
Visits: According to the prisons’ regulations, every prisoner can visit his (or her) family; and each visit should not last less than 20 minutes. The reports received show that the frequency of the visits has grown less, and the time interval between two succeeding visits has grown more by time; but the opportunity to enjoy open prison conditions has also increased for the prisoners. Although the prisoners enjoying such a condition, stay at home for one or two days a week, and need weekly visits less than the ordinary prisoners, but the question may come to mind that if the regulations concerning visits were generalized, wouldn’t those prisoners who are deprived of enjoying open prison conditions, suffer from less opportunities for visiting their family members?
Blindfold, handcuffs, and shackle
Blindfold
Using blindfold in the detention and investigation period, is amongst the significant legal, and human rights issues, which may be viewed from various stand points.
Blindfold from the jailers’ stand point
1- Using blindfold is because of safety reasons from the jailer’s viewpoint; and those who concern about human rights, security, and lives may not oppose it; because, the lives of the official who are involved in fighting against the criminals, in defending the people’s security, and their family members’ lives, might be endangered if they were recognized.
2- Investigators and officials should not be recognized, for the sake of reserving their social positions. As we know, the positions of some ordinary employees of the prisons or investigators is unknown even to their relatives and their neighbors; and they introduce themselves to the others with a pseudonym.
Blindfold, from the prisoners’ stand point
Although the investigators and the jailers have adequate justifications for using blindfold, but the real aims of using it is quite different from what they assert from the prisoners view point.
1- Using blindfolds is a spiritual measure. The spiritual effect of blindfold is that the person accused, in any social and personal status, he may be placed involuntarily under the control of prison functionaries, with a small piece of cloth, feels him (or her) self weak in taking steps forward, as if he (or she) were unwilled person thereafter. From the moment the blindfold is fastened to the eyes of the prisoner, he (or she) feels us if his (or her) personality has broken down; and his (or her) human personality or ego has become absent. Therefore, it seems as if the prisoner has no personality, upon which he (or she) can rely upon in his (or her) resistance, and in defending the rights of the “ego”, which is absent; which has broken down; and even if his (or her) rights were reread to him (or her) so that he might be aware of them it makes no difference to him, because his ( or) her “ego” is at the investigator’s service.
2- Using the above-mentiond item, one can say that destroying the prisoners’ personality firstly, and then putting the fear of god into them, and proving them as disables, are the other aims of using blindfolds.
3- The aim of using a blindfold is not providing the Functionaries with security, because the experience shows that Functionaries and the accused individuals whose eyes had been closed will eventually meet each other; therefore, the blindfold is a means to exercise the investigator’s authority.
4- One might say that, using blindfold, causes an unjust inequality between the investigator and the prisoner, from the legal point of view; while the person who has not yet been recognized as quality, should enjoy equal rights and position with the investigator. meanwhile, in Islamic instructions observing equality between accused persons and the investigator, by the judge.
Criticism:
Whatever propounded in two view points mentioned beforehand, are “rights” in some respects. In fact, whatever the prisoners propound in the first paragraph of their criticism regarding the use of blindfold, is not from the point of view of the criminals and personality, including social and ideological prisoners; but what the jailers propound, regards the criminals and guilty persons. now, the question comes to one’s mind whether or not we can say that the use of blindfolds is allowed for the criminals and is unjust for the other accused ones. Undoubtedly, using blindfolds for other accused persons has no justification, and conforms the reasons mentioned from the prisoners’ viewpoint; with regard to the criminals, the problem deserves deliberation; meanwhile, it is true that the investigator and its family members are exposed to dangers and their lives are threatened if they were recognized by the criminals. the below mentioned points also deserve consideration.
1- Harsh actions many not be started with peaceable persons; but, they may start and justify them with respect to the wicked persons, and then extend them to the peaceables. Thus, one may prevent them from their source, and from the time they are exercised with respect to the wicked persons; however, some people suggest that the use of blindfold can be prescribed for special crimes and probited for the others. According to the jailers’ logic, using blindfolds is also allowed with respect to very dangerous prisoners, and its applications are exceptional; but, the criticism about the problem is: why they have converted this exception into a rule?
2- A way to defend prisoners is that the jailers and the investigators’ jobs are prevented to be humiliating and contrary to the values. Therefore, the reasons for disgracing these jobs by the people, should be eliminated. Is an investigators’ function a sin, that he shouldn’t be recognized? If his job is a lawful and honest one, then there is no reason for his mien and his identity to remain hidden.
3- If the legal procedures’ trends were justly and lawful and the common conscience plays a role in issuance of verdicts for criminals, then the investigator and the jailers would stay in the same line with the society, and the criminals will stay in the opposite tine. This is a reason for the necessity of the jury in trials in progressive societies. If the judicial power deosn’t detain the citizens unjustly, and involve juries in trials, then no doubt will exist about the dignity and the honesty of the jobs of such persons as the investigators and jailers, any longer; and such persons don’t feel themselves quality and in need of being disguised.
4- If article 124 of the rule of judgment were observed, according to which, “enough documents and reasons should be provided for detaining the individuals, but they should not be detained first, and then documents and reasons be provided for, that shows their being quality, by means of investigation procedures, threatening, alluring, deluding, and destroying their personalities”; and if progressive technologies of detecting crimes and police investigation were also utilized for this purpose, then there would be no need for technical investigations causing concerns about the functionaries, any longer.
5- Meanwhile, if the above-mentioned paragraph were observed, then the number of investigators working on the cases of the criminals who are detainded with enough documents and reasons would be too small; but, life threatening for such a small number of functionaries also there exists. A way of confronting this problem, is the prescription of using blindfold in very specific cases; and another and a better way is that this small number of investigators who are in contact with such very specific criminals are placed under necessary training procedures and enough safeguarding measures.
Blindfold, from the legal point of view
A part from the jailers and the prisoners point of view, and weather or not we may allow using it according to their viewpoint, applying it is not accept able from a legal stand point.
1- such issues as using shackle and handcuffs and the cases of their application and how to use them, is propounded in the prisons’ regulations, i.e. the issues themselves are accepted and then the regulations regarding how to use of blindfolds is discussed there; i.e, the issue itself is not accepted in the regulations, much less there remains to say about its details and how to use it.
2- In spite of the legal prohibition for using a blindfold, with due attention to the fact that the law remains silent about it, it was commonly used, until Ayatollah sheikh mohammad yazdi prohibited using it by issuing a circular.
3- This institutionalized conduct however, could not be stopped by the issuance of the circulars, until Ayatollah. shahroodi eventually prohibited the use of the blindfold by the issuance of another circular, which was send to majlis. The Iranian Islamic congress, for approval and appeared as a parliamentary act. Article 7 of the dct: “Respecting legitimate Freedoms and pre serving Human Rights”, say in this respect: “the investigators and the investigating functionaries must abstain covering their faces and / or sitting behind the accused, taking them to unknown places, and performing unlawful actions with them, in general.
Handcuffs and shackle
Rules and regulations
In the 6th chapter of the prisons’ regulation, under the topic: “violations of law and punishments inside the prison”, to a see: article 164- Using hand cuffs for prisoners in order to prevent them from injuring themselves, tormenting and molesting the others and damaging their proper ties is allowed with the order of the prison chief, or the highest responsible person in the prison, when the chief is absent.
Note – using shackle is allowed only if the prisoner can not be controlled by using handcuffs or any other measures.
Inclusion of the above – mentioned article Under the topic “Violations of law and punishments inside the Prison” shows that using handcuffs and shackle when the prisoner is on a leave or he is sent to the hospital or the court of law is not permissible and it is mere used as a means of controlling dangerous prisoners, whenever the fear that a quarrel breaks out exists. Regarding the use of such control facilities outside the prison, only under the note 1 of article 222, about sending or transportation of the
prisoner outside the prison, it says:
“Using handcuffs and the special clothes for prisoners in the above mentioned cases is not required for prisoners unless it is deemed necessary by the prison’s chief, and/ of for the crimes that are specified according to the instructions of the (prisons) organization.
The minimum standard rules of conduct with prisoners.
In article 33 of the “minimum standard rules…”, says: tools for physical control, including handcuff, chains, metal rings for fastening feet and hands, and hand- fastening covers mustn’t ever be used for punishment. FurTheremore, chains and metal rings mustn’t be used for physical control. Other tools of physical control of the individual mustn’t be applied, except in following conditions.
A: As a precautionary action for preventing prisoners’ escape, during transportation, if the are to be sent outside for presence before a judicial or ad ministrational responsible;
B: according to medical reasons, with the permission of medical cares responsible.
C: according to the order of prison’s administration chief. If other methods werenot effective, the prison’s and ministaration chief should consult with the medical cares responsible and submit a report to the higher managers, in order to prevent the prisoner damaging himself of the other prisoners.
As it is perceived from the above-mentioned lines, the application of hand cuffs and shackles, has been essentially accepted in law. The frequent cases of criminals’escape while being sent before a court of law or to a hospital, resulting in accusation of functionaries or soldiers to negligence or colluding with prisoners, is a bitter experience that justifies the use of handcuff 5 and shackle; however, the misgivings created in such cases are not a perem ptory and resolute but and evidential one. Alternatively, the application of such menas with respect to certain prisoners in not legally justifiable. This fact relies upon another chapter of The prisons regulations, under the topic “Classification and distinction.”
According to This Chapter, differentiation and distinction of prisoners, according to their age,dignity, and personality is accomplished by a council lnside the Prison. Therefore, having. The same attitude towards all the prisoners, in applying the tools of physical control, is not justifiable.
Report:
Using handcuffs and shackle for the dangerous prisoners or those who are to be feared of for damaging functionaries or the other prisoners, is ad missible and neccessary in defending the rights and secuity of the others, but using them for the prisoners having esteem and dignity, or for the ideological, political, and press prisoners who are not to be feared of for being dangerous, trying to escape, and damaging the others, is illogical and unlawful. The answers to the questions asked from 25 detained persons in 2 recent years, shows that the handcuffs were used to control 20 and the shackles were used to 8 of them, which is a humiliating and unjustifiable conduct.
(The table showing the use of blindfolds, handcuffs, and shackles in the Persian year 1383)
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The sample size, 25