Meetings between prisoners and lawyers were arranged in an unlawful manner
Deputy Ombudsman Petri Jääskeläinen has criticised the Turku and Riihimäki prisons for having arranged meetings between prisoners and their lawyers in an unlawful manner. A prisoner and his lawyer had to meet in rooms where they were separated by a plexiglass partition and the discussion had to be conducted through a telephone.
The complaint about the practice in Turku was made by a lawyer who, on two occasions and against his will, had to meet a prisoner in such so-called specially supervised circumstances and give the prisoner documents through the mediation of a warder. A meeting arranged in this way in Riihimäki Prison prompted suspicion on the part of a prisoner that the prison authorities were eavesdropping on his conversation with his lawyer.
A prisoners has a right to a confidential meeting with his or her lawyer
Deputy-Ombudsman Jääskeläinen stresses that one of the key guarantees of legal security to which prisoners are entitled is their right to a free and confidential meeting with a lawyer. Therefore the threshold to a meeting being arranged under circumstances of special supervision must be kept especially high. Lawyer-client confidentiality must not be violated in a prison in that the prison authorities listen in on a conversation between a prisoner and a client or read documents that are handled during the meeting.
It has been established in some judgements of the European Court of Human Rights that a breach of the European Convention on Human Rights occurred when a lawyer was separated from his client by a glass partition during a prison visit, which prevented handling of documents and required the conversation to be loud.
The Deputy Ombudsman points out also that genuine and legally required concrete grounds for a meeting being specially supervised must exist. What could in practice be a prerequisite for this is mainly only the suspicion that the meeting would represent a risk to the lawyer's safety. Then a meeting can be arranged, against the lawyer's will, in specially supervised circumstances only in quite exceptional cases.
Reprimand to Turku prison: unlawful procedure has been general practice
Specially supervised meetings between prisoners and lawyers have been the general practice in Turku Prison. The prison authorities have not even perceived that meetings under these circumstances are specially supervised meetings in the meaning of the Prison Act. Thus consideration in accordance with the Act of whether the prerequisites for specially supervised meetings exist has not been conducted in the prison.
Deputy Ombudsman Jääskeläinen regards the incorrectness of the procedure followed by the Turku Prison as being so serious that he has issued a reprimand - despite the fact that, according to information received from the complainant, the prison has since abandoned specially supervised meetings between prisoners and lawyers. Because there are no other kinds of meeting areas in the prison, prisoner and client can now conduct their discussions on the same side of the plexiglass partition.
Unlawful procedure followed in individual exceptional case in Riihimäki Prison
At a specially supervised meeting arranged in Riihimäki Prison, a prisoner had a suspicion that the conversation between him and his lawyer would be listened in on. However, it did not emerge that this was happening and even the lawyer had agreed to the arrangement.
However, Riihimäki Prison does have a separate area that is available for meeting lawyers and accords with the requirements of unsupervised meetings. In it there is no plexiglass or other partition, which makes it possible to read and handle documents together. According to the report received, meetings have on occasion been arranged in a specially monitored area if there have been several lawyers in the same section of the prison at the same time. Then both lawyer and prisoner sit on the same side of the plexiglass partition. In the case that was the subject of the complaint there had been a departure from the normal practice without it being possible to present adequate grounds for doing so. The Deputy Ombudsman informed the prison of his opinion that incorrect procedure had been followed.
Convicts and remand prisoners have an equal need for confidential meetings
The Deputy-Ombudsman finds it unsatisfactory that the Prison Act and the Detention Act contain different provisions on meetings between prisoners and their lawyers. According to the Prison Act, a meeting "can be allowed" without supervision, whereas the Detention Act says that a meeting "must not be supervised" unless there is a founded reason to suspect that the law is being broken.
The Deputy-Ombudsman has asked the Ministry of Justice to consider whether the problematic nature of the regulation for which the Prison Act provides causes a need to explicate the Act. He expects the Ministry's reply by 30.1.2009.
Additional information will be provided by Legal Adviser Pasi Pölönen, tel. +358 (0)9 432 3345.