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Prisoners of the International Community pp 13–66Cite as

The Protection of Detained Persons Under International Law

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Abstract

This chapter sets out the protection of detainees and prisoners under international law, including a general insight into the relevant human rights law and international penal standards. It follows, inter alia, from this chapter that the soft-law penal standards, which are often considered legally non-binding, may in actual fact contain or reflect norms of customary international law.

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Notes

  1. 1.

    See, e.g., Rodley and Pollard 2009.

  2. 2.

    See, however, the SCSL President’s remarks in Norman, where he held that ‘[t]he actual administration of the conditions of detention must comply with the Rules of Detention, which are designed to provide for a regime of humane treatment for unconvicted prisoners, subject to restrictions and discipline necessary for security, good order, and for the fairness of ongoing trials. They should conform with the provisions of the 1949 Geneva Conventions, suitably updated (the right to smoke cigarettes, for example, regarded as virtually inalienable in 1949, may be qualified because of more recent health concerns about fellow detainees)’ (emphasis added); see SCSL, Decision on Motion for Modification of the Conditions of Detention, Prosecutor v. Norman, Case No. SCSL-2003-08-PT, President, 26 November 2003, para 5.

  3. 3.

    Of course, one must recognise the major contributions those discussions have made to a heightened awareness for the vulnerable position of confined persons and to the betterment of their treatment.

  4. 4.

    Article 7 of the Declaration provides that ‘[n]ul homme ne peut être accusé, arrêté ni détenu que dans les cas déterminés par la loi, et selon les formes qu'elle a prescrites. Ceux qui sollicitent, expédient, exécutent ou font exécuter des ordres arbitraires doivent être punis; mais tout citoyen appelé ou saisi en vertu de la loi doit obéir à l'instant : il se rend coupable par la résistance’. See also Article 8 stating that ‘La loi ne doit établir que des peines strictement et évidemment nécessaires, et nul ne peut être puni qu'en vertu d'une loi établie et promulguée antérieurement au délit, et légalement appliquée’and Article 9 which provides that ‘Tout homme étant présumé innocent jusqu'à ce qu'il ait été déclaré coupable, s'il est jugé indispensable de l'arrêter, toute rigueur qui ne serait pas nécessaire pour s'assurer de sa personne doit être sévèrement réprimée par la loi’.

  5. 5.

    See the First Report of the U.N. Special Rapporteur on Torture, U.N. Doc. E/CN.4/1986/15, para 2.

  6. 6.

    Adopted by U.N. G.A. resolution 217 A (III) of 10 December 1948.

  7. 7.

    U.N. G.A. resolution 217 A (III) of 10 December 1948.

  8. 8.

    Van Zyl Smit 2005, p. 362; Van Zyl Smit 2002, p. 5; Suntinger 1999, p. 138.

  9. 9.

    Möller 2003, p. 665. See, also, HRC, General Comment 21, Article 10, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994), of 10 April 1992, para 3.

  10. 10.

    HRC, General Comment 21, Article 10, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994), of 10 April 1992, para 3.

  11. 11.

    Möller concludes, on the basis of an analysis of HRC decisions, that ‘[i]n spite of apparent inconsistencies, the following basic approach appears to be emerging: bad prison conditions (…) lead to a finding of a violation of Article 10(1). Added cruelty or brutality by the police, guards or warders, such as beatings, will normally, but not always, lead to a finding of a violation of Article 7 as well. A consistent case law established during the Uruguay years is that detention incommunicado violates Article 10(1)’; Möller 2003, p. 667.

  12. 12.

    HRC, Leonid Komarovski v. Turkmenistan, views of 24 July 2008, communication 1450/2006, para 3.5.

  13. 13.

    Id., para 7.5.

  14. 14.

    HRC, Fongum Gorji-Dinka v. Cameroon, views of 17 March 2005, communication 1134/2002, para 5.2.

  15. 15.

    Convention on the Rights of the Child, adopted by U.N. G.A. resolution 44/25 of 29 November 1989, entry into force on 2 September 1990.

  16. 16.

    International Convention on the Elimination of All Forms of Racial Discrimination, adopted by U.N. G.A. resolution 2106 (XX) of 21 December 1965, entry into force on 4 January 1969.

  17. 17.

    Convention on the Elimination of All Forms of Discrimination against Women, adopted by U.N. G.A. resolution 34/180 of 18 December 1979, entry into force on 3 September 1981.

  18. 18.

    See, also, the various General Comments on the implementation of ICESCR rights as adopted by the Committee on Economic, Social and Cultural Rights. See, in connection to the right to the enjoyment of the highest attainable standard of physical and mental health under Article 12, General Comment No. 14 (2000), U.N. Doc. E/C.12/2000/4 of 11 August 2000 (see, in particular, para 34, which holds that ‘States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees’ (emphasis in the original)).

  19. 19.

    Rodley argues that the norm contained in Article 10(1) ICCPR (and Article 5 of the ACHR) is (a non-derogable) rule of general international law. He points, inter alia, to the General Comments of the HRC on Articles 7 and 10, which both provide that these provisions supplement each other. See Rodley 1999, p. 278. In the third edition of this work, Rodley refers to HRC General Comment 29, where the HRC holds that it ‘believes that here the Covenant expresses a norm of general international law not subject to derogation’; see Rodley and Pollard 2009, p. 381, footnote 7. See HRC, General Comment No. 29, of 31 August 2001, U.N. Doc. CCPR/C/21/Rev.1/Add.11, para 13(a). In Barayagwiza, the ICTR Appeals Chamber more generally held that ‘[t]he International Covenant on Civil and Political Rights is part of general international law and is applied on that basis’; see ICTR, Decision, Barayagwiza v. the Prosecutor, Case No. ICTR-97-19-A, A. Ch., 3 November 1999, para 40.

  20. 20.

    See, further, infra, Chap. 3.

  21. 21.

    Established pursuant to ECOSOC resolution 1503 (XLVIII), of 27 May 1970, as amended by resolution 2000/3 of 16 June 2000.

  22. 22.

    HRC, General Comment 20, Article 7, U.N. Doc. HRI/GEN/1/Rev.6 at 151 (2003), 10 March 1992, para 2.

  23. 23.

    HRC, Edriss El Hassy, on behalf of his brother, Abu Bakar El Hassy v. Libyan Arab Jamahiriya, views of 24 October 2007, communication 1422/2005, para 6.2.

  24. 24.

    Id., para 6.3.

  25. 25.

    HRC, Ali Medjnoune (on behalf of his son Malik Medjnoune) v. Algeria, views of 14 July 2006, communication 1297/2004, para 8.4.

  26. 26.

    HRC, C. v. Australia, views of 28 October 2002, communication 900/1999, para 8.4.

  27. 27.

    U.N. G.A. resolution 3452, of 9 December 1975.

  28. 28.

    Adopted by U.N. G.A. resolution 39/46 of 10 December 1984, entered into force on 26 June 1987.

  29. 29.

    Under Article 22(1), the individual complaints procedure is subject to a declaration by State parties in which they recognise the Committee’s competence.

  30. 30.

    Nowak and McArthur 2008, p. 558.

  31. 31.

    Article 16(1) provides that ‘[e]ach State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment’.

  32. 32.

    Since Article 16 uses the term ‘in particular’, the citation must, arguably, not be regarded as exhaustive; see Nowak and McArthur 2008, p. 570. These authors point out that at least the obligations concerning the use of criminal law in the articles 4–9 apply solely to the prohibition of torture.

  33. 33.

    See, for instance, in respect of Denmark, CAT, A/52/44, of 10 September 1997, para 186 (the Committee stated that ‘[e]xcept in exceptional circumstances, inter alia, when the safety of persons or property is involved, the Committee recommends that the use of solitary confinement be abolished, particularly during pre-trial detention, or at least that it should be strictly and specifically regulated by law (maximum duration, etc.) and that judicial supervision should be introduced’ (emphasis in the original). See, further, in respect of Sweden, CAT, A/52/44, of 10 September 1997, para 225 (it was held that ‘[w]hile the Committee welcomes the information that the question of “restrictions”, including solitary confinement, during pre-trial detention is under review by the Swedish authorities, it recommends that the institution of solitary confinement be abolished, particularly during the period of pre-trial detention, other than in exceptional cases, inter alia, when the security or the well-being of persons or property are in danger, and the measure is applied, in accordance with the law and under judicial control’.

  34. 34.

    See, for instance, in respect of Cameroon, CAT/C/CR/31/6, of 5 February 2004, para 4(b), where the Committee held that ‘[t]he continued existence of extreme overcrowding in Cameroonian prisons, in which living and hygiene conditions would appear to endanger the health and lives of prisoners and are tantamount to inhuman and degrading treatment’. See, further, in respect of detention conditions in Greece, CAT/C/CR/33/2, of 10 December 2004, para 5(i).

  35. 35.

    See, in respect of conditions of detention in Paraguay, CAT/C/SR.418, of 11 January 2001, paras 18, 38. See, also, in respect of Nepal, CAT/C/NPL/CO/2, of 13 April 2007, para 31, where the Committee states that it was ‘concerned about allegations of poor conditions of detention, in particular overcrowding, poor sanitation, staffing shortages and lack of medical attention for detainees (art. 16)’.

  36. 36.

    Nowak and McArthur 2008, p. 570.

  37. 37.

    See Committee Against Torture, Hajrizi Dzemajl et al. v. Yugoslavia, Complaint No. 161/2000, para 9.6, where it was held that ‘[c]oncerning the alleged violation of article 14 of the Convention, the Committee notes that the scope of application of the said provision only refers to torture in the sense of article 1 of the Convention and does not cover other forms of ill-treatment. Moreover, article 16, para 1, of the Convention while specifically referring to articles 10, 11, 12, and 13, does not mention article 14 of the Convention. Nevertheless, article 14 of the Convention does not mean that the State party is not obliged to grant redress and fair and adequate compensation to the victim of an act in breach of article 16 of the Convention. The positive obligations that flow from the first sentence of article 16 of the Convention include an obligation to grant redress and compensate the victims of an act in breach of that provision. The Committee is therefore of the view that the State party has failed to observe its obligations under article 16 of the Convention by failing to enable the complainants to obtain redress and to provide them with fair and adequate compensation’.

  38. 38.

    See the First Report of the First U.N. Special Rapporteur on Torture, U.N. Doc. E/CN.4/1986/15, para 3; and the CAT, General Comment No. 2, U.N. Doc. CAT/C/GC/2/CRP.1/Rev.4, 23 November 2007. See, further, Nowak and McArthur 2008, pp. 117–118; Office of the United Nations High Commissioner for Human Rights 2005, p. 8. See, also, Evans and Morgan 1998, p. 63, where they state that ‘[i]t is widely accepted that (…) Article 5 of the UDHR is an example of an obligation erga omnes (…)’. Further evidence can be found in the Opinions of the Lords of Appeal for Judgment in the Cause of Regina v. Bartle and the Commissioner of Police for the Metropolis and others (Appellants) Ex Parte Pinochet (Respondent); Regina v. Evans and another and the Commissioner of the Police for the Metropolis and others (Appellants) Ex Parte Pinochet (Respondent) (On Appeal from a Divisional Court of the Queen’s Bench Division) of 24 March 1999; and in ICTY, Judgement, Prosecutor v. Furundžija, Case No. IT-95-17/1-T, T. Ch., 10 December 1998, para 153.

  39. 39.

    Office of the United Nations High Commissioner for Human Rights 2005, p. 8; Tomuschat 2003, p. 35.

  40. 40.

    Proclamation of Tehran, para 2. Emphasis added.

  41. 41.

    U.N. G.A. resolution of 4 March 2008, U.N. Doc. A/RES/62/148. Emphasis added. See, also, the Preamble to the U.N. G.A. resolution of 21 February 2006, U.N. Doc. A/RES/60/148.

  42. 42.

    HRC, General Comment 24, General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under Article 41 of the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.6, 4 November 1994, para 8.

  43. 43.

    See the Preamble to the Convention, which states that the Convention’s purpose is the desire ‘to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world’. See Nowak and McArthur 2008, pp. 118–119.

  44. 44.

    Ibid.

  45. 45.

    Id., p. 61.

  46. 46.

    See Rodley and Pollard 2009, pp. 70–71. See, also, for an impressive overview of domestic legislation, case law and other practice, Henckaerts and Doswald-Beck 2005, pp. 2121–2140.

  47. 47.

    The OPCAT was adopted by the U.N. G.A. in resolution 57/199 of 18 December 2002, and entered into force on 23 June 2006 after twenty State parties had ratified the Convention in accordance with Article 28(1) of the OPCAT.

  48. 48.

    Article 1 of the OPCAT.

  49. 49.

    See SPT, First Annual Report of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment of Punishment, CAT/C/40/2, 14 May 2008, para 7.

  50. 50.

    Article 18, paras (2) and (3).

  51. 51.

    See SPT, First Annual Report of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment of Punishment, CAT/C/40/2, 14 May 2008, para 11.

  52. 52.

    Id., para 12.

  53. 53.

    Id., para 24.

  54. 54.

    Id., para 28.

  55. 55.

    When discussing the CPT further below, it will be seen that the Committee’s work which rests on a preventive mandate likewise the Subcommittee’s under the OPCAT, has been of much assistance to the European Court of Human Rights.

  56. 56.

    Established by the U.N. Commission on Human Rights in resolution 1985/33, based on ECOSOC resolution 1235 (XLII).

  57. 57.

    U.N. Commission on Human Rights resolution 1985/33 of 13 March 1985, Preamble. The reference to other cruel, inhuman or degrading treatment or punishment was deleted during the revisal of the original draft resolution; see U.N. Doc. E/CN.4/1985/L.44. The Special Rapporteur noted in his first report that it would, therefore, appear ‘quite clear that the intention of the Commission was to restrict the Special Rapporteur’s mandate to “the question of torture”’; see Report of the First U.N. Special Rapporteur on Torture, U.N. Doc. E/CN.4/1986/15, 19 February 1986, paras 22. Nevertheless, in later practice, the Special Rapporteur did not appear to have felt in any way restricted to examining only instances of torture. Later, he was explicitly invited by the Commission to also examine cases of cruel, inhuman or degrading treatment or punishment; see, e.g., Report of the Special Rapporteur, Mr. Nigel S. Rodley, U.N. Doc. E/CN.4/1998/38, 24 December 1997, paras 22–23; U.N. Doc. E/CN.4/RES/1999/32, paras 22–23, and U.N. Doc. E/CN.4/RES/2000/43, paras 26–27.

  58. 58.

    See U.N. Commission on Human Rights resolution 1985/33 of 13 March 1985, para 1.

  59. 59.

    From 1992 onwards, the mandate was regularly extended, each time for a period of 3 years: in 1992, 1995, 1998, 2001 and 2004.

  60. 60.

    See U.N. G.A. 60/251 of 3 April 2006, para 1 of the resolution, which provides that the U.N. G.A. ‘[d]ecides to establish the Human Rights Council, based in Geneva, in replacement of the Commission on Human Rights, as a subsidiary organ of the General Assembly’ (emphasis omitted). The institution-building and review programme was set out in Human Rights Council resolution 5/1.

  61. 61.

    See U.N. Doc. A/HRC/RES/8/8, para 3. The new mandate refers to the Special Rapporteur as the ‘Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment’. Emphasis added.

  62. 62.

    See Report of the Special Rapporteur on the question of torture, Theo van Boven, U.N. Doc. E/CN.4/2003/68, 17 December 2002, para 3. See, further, the Report of the Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, U.N. Doc. A/HRC/7/3, 15 January 2008, paras 5 and 6.

  63. 63.

    See http://www2.ohchr.org/english/issues/torture/rapporteur/appeals.htm (last visited by the author on 11 May 2011).

  64. 64.

    See http://www2.ohchr.org/english/issues/torture/rapporteur/visits.htm (last visited by the author on 11 May 2011).

  65. 65.

    Ibid. Listed is, for instance, Algeria which received a first request back in 1997.

  66. 66.

    Report of the Special Rapporteur on the question of torture, Theo van Boven, U.N. Doc. E/CN.4/2003/68, 17 December 2002, para 26.

  67. 67.

    See Clark 1989, p. 69.

  68. 68.

    Van Zyl Smit and Snacken 2009, p. 6. See, further, Clark 1994, p. 7.

  69. 69.

    Cited in Clark 1994, p. 11. See, also, The United Nations and Crime Prevention, United Nations, New York 1991, p. 11.

  70. 70.

    U.N. G.A. resolution 415(V), of 1 December 1950, para 1. The U.N. did not wish to be directly affiliated with the IPPC, because of the latter’s reputation being severely damaged due to both its 1935 congress, which was held in Berlin and was dominated by adherents to the Nazi movement, and the strong representation in the IPPC of fascist ideologies during the war years. See The United Nations and Crime Prevention, United Nations, New York 1991, p. 4.

  71. 71.

    U.N. G.A. resolution 415(V), of 1 December 1950, Annex, sub d.

  72. 72.

    Id., sub a–b.

  73. 73.

    Clark 1994, pp. 19–20.

  74. 74.

    U.N. G.A. resolution 46/152 of 18 December 1991.

  75. 75.

    Clark 1994, p. 23.

  76. 76.

    The SMR were unanimously adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and were approved by the Economic and Social Council by its resolutions 663 C (XXIV), of 31 July 1957 and 2076 (LXII), of 13 May 1977. See, for more details on the first congress, López-Rey 1956. See, for an extensive commentary on the adoption and drafting processes, Report by the Secretariat, Standard Minimum Rules for the Treatment of Prisoners, First United Nations Congress on the Prevention of Crime and the Treatment of Offenders Geneva 1955, United Nations, U.N. Doc. A/CONF.6/C.1/L.1, 14 February 1955.

  77. 77.

    League of Nations, resolution of 26 September 1934.

  78. 78.

    Preliminary Observations, paras 1 and 3.

  79. 79.

    ECOSOC resolution 2076 (LXII) of 13 May 1977.

  80. 80.

    Bassiouni 1987, p. 516.

  81. 81.

    See Bouloukos and Dammann 2001, p. 757. See also Viljoen 2005, p. 126.

  82. 82.

    Clark 1994, p. 102. See, also, Bassiouni 1987, p. 516, and Report Prepared by the Secretariat, First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Geneva, 22 August–3 September 1955, United Nations Department of Economic and Social Affairs, New York 1956, paras 3, 5.

  83. 83.

    Clark 1995, p. 293.

  84. 84.

    Hence the term ‘instrument’ as used here does not necessarily refer to legal instruments.

  85. 85.

    In most cases, the actual content of the standards adopted is not even reproduced in the resolution, which refers only in broad terms to the Rules’ adoption by the congress.

  86. 86.

    This, of course, also applies to reports by for instance the Special Rapporteur on Torture. Soft-law instruments as such do not fit into one of the categories of the customary norm underlying Article 38 of the ICJ Statute and may, therefore, be argued not to be formally governed by international law; see Schachter 1977, p. 300. See, for an opposing view, Hillgenberg, who argues that ‘[i]f the parties expressly or implicitly do not want a treaty, the provisions of the Vienna Convention do not apply. However, this does not necessarily mean that all non-treaty agreements only follow ‘political’ or moral rules. There is no provision of international law which prohibits such agreements as sources of law, unless—obviously—they violate jus cogens’; Hillgenberg 1999, p. 503.

  87. 87.

    See Rodley and Pollard 2009, pp. 383–384. See, further, Clark 1994, p. 99, footnote 9. See, also, Kreß and Sluiter, Imprisonment, 2002a, p. 1769; and Clark, Article 106, 2008, p. 1663.

  88. 88.

    Clark 1995, p. 300. It is important to note, in this respect, that universal practice is not required for a norm to be considered part of customary international law; Bernard 1994, p. 786.

  89. 89.

    See Clark 1994, pp. 142; Rodley and Pollard 2009, p. 384.

  90. 90.

    The argument was made by in: Bassiouni 1985, p. 528. See, further, Clifford 1972, p. 234. Clifford states with respect to the SMR that ‘[t]hey have what I believe is a peculiar characteristic in that they are regulations without the ensuing mandate of a law, unless perhaps you consider the Declaration of Human Rights as providing that mandate’. See, also, Bernard 1994, p. 773.

  91. 91.

    See, e.g., in respect of outlawing corporal punishment, the following HRC decisions: HRC, Balkissoon Soogrim v. Trinidad and Tobago, views of 8 April 1993, communication 362/1989, para 14; HRC, Nicholas Henry v. Jamaica, views of 20 October 1998, communication 610/1995, para 7.3; and HRC, Silbert Daley v. Jamaica, views of 31 July 1998, communication 750/1997, para 7.2. See, also, para C of the General Recommendations of the Special Rapporteur on Torture in U.N. Doc. E/CN.4/2003/68, para 26.

  92. 92.

    See, in a similar vein, Clark 1994, pp. 142–143 and 300. It is recalled that it is not the aim of this research to discern all the international customary norms that govern detention conditions. Further, no methodology is advanced here for determining the content of these international norms.

  93. 93.

    See, e.g., U.N. G.A. resolution 2858 (XXVI) of 20 December 1971; and U.N. G.A. resolution 3144 of 14 December 1973. See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits—Judgment, I.C.J. Reports 1986, p. 14, para 203.

  94. 94.

    Clark 1994, p. 300.

  95. 95.

    Clifford 1972, p. 234.

  96. 96.

    See: Working paper prepared by the Secretariat, The Standard Minimum Rules for the Treatment of Prisoners in the Light of Recent Developments in the Correctional Field, Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Kyoto, Japan, 17–26 August 1970, United Nations, U.N. Doc. A/CONF.43/3, New York 1970, para 37, where it is stated that the ‘problem of a balance between the basic, unchangeable core of the Rules and the variable or more pliant sections of the document might be approached more effectively if the Rules were structurally divided into the two categories, fundamental and non-fundamental’.

  97. 97.

    Clark 1994, p. 148.

  98. 98.

    U.N. G.A. resolution 45/111 of 14 December 1990.

  99. 99.

    See U.N. Doc. E/CN.15/2003/CRP.9 of 19 May 2003.

  100. 100.

    Id., Annex sub I.

  101. 101.

    Id., Annex sub II. Emphasis added.

  102. 102.

    Id., Annex sub VII.

  103. 103.

    Id., Annex sub VIII.

  104. 104.

    Adopted by the U.N. G. A. in resolution 43/173 of 9 December 1988.

  105. 105.

    Adopted by the U.N. G. A. in resolution 45/111 of 14 December 1990.

  106. 106.

    The 1967 survey, for instance, generated 44 responses. In the 1974 survey 62 responses were registered; the 1980 survey got only 37 responses. In 1984 there were 62 responses, whereas to a 1989 survey, only 49 countries responded.

  107. 107.

    See, in a similar vein, López-Rey 1985, p. 62.

  108. 108.

    See, e.g., U.N. G.A. resolution 3144 of 14 December 1973, and U.N. G.A. resolution 2858 of 20 December 1971.

  109. 109.

    ECOSOC res. 1984/47 of 25 May 1984. The Procedures were approved in ECOSOC resolution 1984/47 of 25 May 1984. The U.N. G.A. endorsed the Procedures in its resolution 39/118 of 14 December 1984. See, also, other U.N. General Assembly resolutions which stress the need for an advanced implementation of the SMR as, for instance, U.N. G.A. resolution 40/146 of 13 December 1985, paras 4–5, where it is held that the General Assembly considered ‘with appreciation the recommendations made by the Seventh Congress with a view to ensuring more effective application of existing standards, in particular the Standard Minimum Rules for the Treatment of Prisoners (…)’. See, also, U.N. G.A. resolutions 2858 (XXVI) of 20 December 1971, 3144B (XXVIII) of 14 December 1973 and 3218 (XXIX) of 6 November 1973. See, further, Bassiouni 1985, pp. 525–539.

  110. 110.

    The Commentary to Procedure 1 points to U.N. G.A. resolution 2858 (XXVI) of 20 December 1971, which already recommended member States to effectively implement the SMR and incorporate them in domestic law.

  111. 111.

    ECOSOC resolution 663c (XXIV) of 31 July 1957 recommended that such reporting on the implementation of the Rules to the U.N. Secretary-General be carried out every 5 years, and permitted the Secretary-General to draw up reports and seek additional information.

  112. 112.

    In U.N. G.A. resolution 39/118 of 14 December 1984, the U.N. G.A. requested the Secretary-General to ‘discharge fully his tasks in connection to the implementation’ of the SMR, ‘particularly with regard to procedures 7, 8, 9 and 10’. Article 98 of the U.N. Charter provides for the General Assembly’s authority to entrust the Secretary-General with specific functions. See Sloan 1991, p. 19.

  113. 113.

    See, e.g., Report of the Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Cairo, Egypt, 29 April—8 May 1995, U.N. Doc. A/CONF.169/16, 12 May 1995, pp. 17–18.

  114. 114.

    In the Report by the Secretariat, Standard Minimum Rules for the Treatment of Prisoners, First United Nations Congress on the Prevention of Crime and the Treatment of Offenders Geneva 1955, United Nations, U.N. Doc. A/CONF.6/C.1/L.1, 14 February 1955, para 14, it is stated that ‘[a]lthough the Advisory Committee, at its meeting in 1953, considered the possibility of classifying the Minimum Rules, as adopted by the regional conferences, into several groups (…) the study carried out by the Secretariat has shown that such a classification is unnecessary, as there are very few instances, in fact, where substantial differences of a regional, geographical, cultural or administrative nature necessitate special provisions’. Debates during the drafting process on the term ‘minimum’ in the title of the draft, led to the conclusion that ‘it is only financial difficulties (…) that still prevent certain countries from giving all the stipulated rules practical effect. No Government has raised any objections regarding the principle of their application’, id., p. 8. See, further, Report of the Secretary-General, Implementation of the United Nations Standards Minimum Rules for the Treatment of Prisoners, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, Italy, 26 August to 6 September 1985, U.N. Doc. A.CONF.121/15, 31 May 1985, paras 10, 11. See, also, Working paper prepared by the Secretariat, Implementation of the United Nations Standard Minimum Rules for the Treatment of Prisoners, Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Caracas, Venezuela, 25 August-5 September 1980, U.N. Doc. A/CONF.87/11, 10 July 1980, paras 10, 52.

  115. 115.

    See López-Rey 1985, p. 64. He states that ‘[g]enerally the factors preventing a satisfactory application of the fundamental rules are the increase of prison populations, which in most cases means overcrowding even in some developed countries; lack of financial means; shortage of trained personnel; and, although not specifically mentioned, political instability and the lack of interest of dictatorial regimes in improving institutional and non-institutional treatment’. See, also, Working paper prepared by the Secretariat, The Standard Minimum Rules for the Treatment of Prisoners in the Light of Recent Developments in the Correctional Field, Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Kyoto, Japan, 17-26 August 1970, United Nations, New York 1970, U.N. Doc. A/CONF.43/3, para 55.

  116. 116.

    Report of the Secretary-General, Implementation of the United Nations Standards Minimum Rules for the Treatment of Prisoners, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, Italy, 26 August to 6 September 1985, U.N. Doc. A.CONF.121/15, 31 May 1985, paras 21–23, 27, 40, 46, 48–49, 56 and 60. In ‘Working paper prepared by the Secretariat, The Standard Minimum Rules for the Treatment of Prisoners in the Light of Recent Developments in the Correctional Field, Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Kyoto, Japan, 17-26 August 1970, United Nations, U.N. Doc. A/CONF.43/3, New York 1970, para 57’, it is stated that ´the concern about relevance was something which derived from the self/critical attitudes of the people from the countries which had been represented in the drafting of the Rules, rather than from the several cultures which had been asked to consider their adoption without having had the opportunity to influence their drafting. The experts from all parts of the world do not appear to have felt that these Rules need fundamental re-orientation to take more effective account of cultural variations’. Moreover, it is stated in para 105 that the SMR ‘have already established themselves as universal guidelines. Countries have accepted them, whether or not they are in a position to implement all the provisions fully’.

  117. 117.

    Rodley and Pollard 2009, p. 383.

  118. 118.

    See, for the relevance of the duration of a practice, e.g., ECtHR, Kostadinov v. Bulgaria, judgment of 7 February 2008, Application No. 55712/00, para 56; ECtHR, Kalashnikov v. Russia, judgment of 15 July 2002, Application No. 47095/99, paras 95, 102; and ECtHR, Kehayov v. Bulgaria, judgment of 18 January 2005, Application No. 41035/98, para 64.

  119. 119.

    Admittedly, it is not always self-evident from examining HRC cases why certain conditions of detention lead to violations of Article 10 instead of Article 7 and vice versa.

  120. 120.

    HRC, General Comment 21, Article 10, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994), of 10 April 1992, para 5.

  121. 121.

    HRC, Leon R. Rouse v. The Philippines, Communication No. 1089/2002, U.N. Doc. CCPR/C/84/D/1089/2002 (2005), views of 25 July 2005, para 7.8. Emphasis added.

  122. 122.

    Ibid.

  123. 123.

    See, also, HRC, Albert Womah Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994), views of 21 July 1994, para 9.3, where the Committee stated in respect of an Article 7 violation that ‘certain minimum standards regarding the conditions of detention must be observed regardless of a State party's level of development. These include, in accordance with Rules 10, 12, 17, 19 and 20 of the U.N. Standard Minimum Rules for the Treatment of Prisoners, minimum floor space and cubic content of air for each prisoner, adequate sanitary facilities, clothing which shall be in no manner degrading or humiliating, provision of a separate bed, and provision of food of nutritional value adequate for health and strength. It should be noted that these are minimum requirements which the Committee considers should always be observed, even if economic or budgetary considerations may make compliance with these obligations difficult’(footnote omitted).

  124. 124.

    HRC, Safarmo Kurbanova on behalf of her son, Abduali Ismatovich Kurbanov, v. Tajikistan, Communication No. 1096/2002, U.N. Doc. CCPR/C/79/D/1096/2002 (2003), views of 6 November 2003.

  125. 125.

    Id., para 7.8. Emphasis added.

  126. 126.

    HRC, Fongum Gorji-Dinka v. Cameroon, Communication 1134/2002, U.N. Doc. CCPR/C/83/D/1134/2002 (2005), views of 17 March 2005, para 5.2. The same remarks were made by the Committee in HRC, Abdelhamid Benhadj v. Algeria, Communication No. 1173/2003, U.N. Doc. CCPR/C/90/D/1173/2003, views of 20 July 2007, para 8.5.

  127. 127.

    Report by the Special Rapporteur, Mr. P. Kooijmans, U.N. Doc. E/CN.4/1989/15, 23 January 1989, para 233 sub(g).

  128. 128.

    See Report of the Special Rapporteur, Mr. P. Kooijmans, U.N. Doc. E/CN.4/1992/17, 27 December 1991, para 282. See, further, Report of the Special Rapporteur, Mr. Nigel S. Rodley, U.N. Doc. E/CN.4/1994/31, 6 January 1994, paras 23 and 172; Report of the Special Rapporteur, Mr. Nigel S. Rodley, U.N. Doc. E/CN.4/1995/34, 12 January 1995, para 926 sub (h); Report of the Special Rapporteur, Visit to Pakistan, Nigel S. Rodley, U.N. Doc. E/CN.4/1997/7/Add.2, 15 October 1996, paras 57, 72, 104; Report of the Special Rapporteur, Visit to Venezuela, Nigel S. Rodley, U.N. Doc. E/CN.4/1997/7/Add.3, 13 December 1996, para 85 sub(u); Report of the Special Rapporteur, Mr. Nigel S. Rodley, U.N. Doc. E/CN.4/1997/7, 10 January 1997, paras 8, 9; and E/CN.4/1998/38, para 201.

  129. 129.

    U.N. Doc. A/54/426, para 8.

  130. 130.

    See, e.g., U.N. Docs. E/CN.4/RES/1993/40; E/CN.4/RES/1994/37; E/CN.4/RES/1995/37; and E/CN.4/RES/1996/33.

  131. 131.

    See, e.g., ECtHR, Khudoyorov v. Russia, judgment of 8 November 2005, Application No. 6847/02, para 97; ECtHR, Dickson v. the United Kingdom, judgment of 4 December 2007, Application No. 44362/04, para 30; ECtHR, Mamedova v. Russia, judgment of 1 June 2006, Application No. 7064/05, para 51. See, in respect of the I-ACtHR, e.g., I-ACtHR, Juvenile Reeducation v. Paraguay, judgment of 2 September 2004, para 154, footnote 156; I-ACtHR, Caesar v. Trinidad and Tobago, judgment of 11 March 2005, para 61 (the Court refers to the use made of the SMR by the U.N. Special Rapporteur on Torture); I-ACtHR, Yvon Neptune v. Haiti, judgment of 6 May 2008, para 131 (the Court refers to the use made of the SMR by the Committee Against Torture) and para 137 (the Court refers to findings by the Commission of non-compliance with the SMR); I-ACtHR, Lori Berenson-Mejía v. Peru, judgment of 25 November 2004, para 102, footnote 218; I-ACtHR, Montero-Aranguren et al. (Detention Center of Catia) v. Venezuela, judgment of 5 July 2006, para 94, footnote 153; I-ACtHR, Raxcacó-Reyes v. Guatemala, judgment of 15 September 2005, para 99; and I-ACtHR, Boyce et al. v. Barbados, judgment of 20 November 2007, para 88, footnote 84.

  132. 132.

    ECtHR, Ramirez Sanchez v. France, judgment of 4 July 2006, Application No. 59450/00, para 130.

  133. 133.

    ECtHR, Ciorap v. Moldova, judgment of 19 June 2007, Application No. 12066/02; ECtHR, Pilčić v. Croatia, judgment of 17 April 2008, Application No. 33138/06, para 24; ECtHR, Kafkaris v. Cyprus, judgment of 12 February 2008, Application No. 21906/04, para 73; ECtHR, Istratii et al. v. Moldova, judgment of 27 June 2007, Applications Nos. 8721/05, 8705/05 and 8742/05, para 31; ECtHR, Renolde v. France, judgment of 16 October 2008, Application No. 5608/05, paras 64–65.

  134. 134.

    USA Supreme Court, Estelle v. Gamble, 429 U.S. 97 (1976).

  135. 135.

    See, e.g., RSJ, 08/1943/GA of 4 December 2008; RSJ, 08/1748/TA of 13 November 2008; RSJ, 07/3438/GB of 31 March 2008; RSJ, 07/1742/GA of 11 October 2007; RSJ, 06/3258/GA of 6 June 2007, RSJ, 07/0336/GB of 15 May 2007; RSJ, 06/3188/GB of 27 March 2007; RSJ, 06/3263/GB of 27 March 2007; RSJ, 06/3185/GB of 27 March 2007; RSJ, 06/3261/GB of 27 March 2007; RSJ, 07/0034/GB of 27 March 2007; RSJ, 06/3139/GB of 27 March 2007; RSJ, 06/3260/GB of 27 March 2007; RSJ, 06/2052/GA and 06/2053/GA of 8 January 2007; RSJ, 06/0698/GA of 22 August 2006; RSJ, 04/2401/GA of 16 December 2004; RSJ, 04/1375/GA of 19 November 2004; RSJ, 04/1406/GA of 19 November 2004; RSJ, 04/1397/GA of 19 October 2004; RSJ, 04/0976/SGA of 19 May 2004; RSJ, 03/2214/GA of 29 January 2004; RSJ, 03/2776/SGA of 11 December 2003; RSJ, 06/2052/GA and 06/2053/GA of 8 January 2007. See, further, District Court of The Hague, judgment of 14 August 2002, LJN: AE6513; District Court of The Hague, judgment of 11 December 2006, LJN: AZ4156; Dutch Supreme Court, judgment of 19 October 2007, LJN: BA8454; Dutch Supreme Court, judgment of 30 September 2008, LJN: BF3741; and Amsterdam Court of Appeal, judgment of 7 July 2000, LJN: AA8427.

  136. 136.

    Clark 1989, p. 72.

  137. 137.

    See Bassiouni 1987, p. 515. See, also, Treves 1990, p. 579.

  138. 138.

    U.N. G.A. resolution 3452 (XXX) of 9 December 1975. See, also, López-Rey 1985, p. 13.

  139. 139.

    Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders and ‘taken note of with appreciation’ by the U.N. General Assembly in resolution 40/146 of 13 December 1985.

  140. 140.

    Ibid.

  141. 141.

    Adopted by the U.N. G.A. in resolution 43/173 of 9 December 1988.

  142. 142.

    Adopted by the U.N. G.A. in resolution 45/111 of 14 December 1990.

  143. 143.

    Adopted by the U.N. G.A. in resolution 40/33 of 29 November 1985.

  144. 144.

    Adopted by the U.N. G.A. in resolution 45/113 of 14 December 1990.

  145. 145.

    Recommended by ECOSOC in resolution 1989/65 of 24 May 1989.

  146. 146.

    Adopted by the U.N. G.A. in resolution 48/104 of 20 December 1993.

  147. 147.

    Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.

  148. 148.

    Approved by the U.N. G. A. in resolution 34/169 of 17 December 1979.

  149. 149.

    Recommended by the U.N. G.A. in resolution 55/89 of 4 December 2000.

  150. 150.

    Adopted by the U.N. G.A. in resolution 37/194 of 18 December 1982.

  151. 151.

    Clark 1994, p. 118.

  152. 152.

    Adopted by the U.N. General Assembly in its resolution 43/173 of 9 December 1988.

  153. 153.

    See, further, Treves 1990.

  154. 154.

    Cited in Treves 1990, p. 580.

  155. 155.

    Emphasis added.

  156. 156.

    Cited in Treves 1990, p. 583.

  157. 157.

    See Resolution (62)2 on electoral, civil and social rights of prisoners; R(67)5 on research on prisoners considered from the individual angle and on the prison community; R(70)1 on the practical organization of measures for the supervision and after-care of conditionally sentenced or conditionally released offenders; R(79)14 concerning the application of the European Convention on the supervision of conditionally sentenced or conditionally released offenders; R(82)16 on prison leave; R(82)17 on the custody and treatment of dangerous prisoners; R(84)11 concerning information about the Convention on the Transfer of Sentenced Persons; R(84)12 concerning foreign prisoners; R(88)13 concerning the practical application of the Convention on the Transfer of Sentenced Persons; R(89)12 on education in prison; R(92)16 on the European rules on community sanctions and measures; R(92)18 concerning the practical application of the Convention on the Transfer of Sentenced Persons; R(93)6 concerning prison and criminological aspects of the control of transmissible diseases including aids and related health problems in prison; R(97)12 on staff concerned with the implementation of sanctions and measures; R(98)7 concerning the ethical and organizational aspects of health care in prison; R(99)19 concerning mediation in penal matters; R(99)22 concerning prison overcrowding and prison population inflation; Rec(2000)22 on improving the implementation of the European rules on community sanctions and measures; Rec(2003)22 concerning conditional release; Rec(2003)23 on the management of life-sentence and other long-term prisoners; Rec(2006)2 on the European Prison Rules; Rec(2006)13 on the use of remand in custody, the conditions in which it takes place and the provisions of safeguards against abuse; Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures; CM/Rec (2010)01 on the Council of Europe Probation Rules.

  158. 158.

    Article 15.b of the Statute of the Council of Europe, London, 5.V.1949.

  159. 159.

    See, on the Court’s initial reticence to examine detention conditions under Article 3, inter alia, Murdoch 2006, pp. 46; Smaers 1994, p. 46, 55. Smaers states that the cause thereof may lie in the fact that established violations of Article 3 have serious repercussions for a State’s prestige. See, further, Van Zyl Smit and Snacken 2009, p. 12.

  160. 160.

    ECtHR, Golder v. the United Kingdom, judgment of 21 February 1975, Application No. 4451/70.

  161. 161.

    Murdoch 2006, p. 31.

  162. 162.

    Livingstone 2000, p. 314.

  163. 163.

    See, also, Kelk 2004, p. 274.

  164. 164.

    ECtHR, Keenan v. The United Kingdom, judgment of 3 April 2001, Application No. 27229/95.

  165. 165.

    Id., para 89.

  166. 166.

    Id., para 111.

  167. 167.

    Id., para 116.

  168. 168.

    ECtHR, Renolde v. France, judgment of 16 October 2008, Application No. 5608/05, para 81.

  169. 169.

    ECtHR, Paul and Audrey Edwards v. The United Kingdom, judgment of 14 March 2002, Application No. 46477/99.

  170. 170.

    Id., paras 54–56.

  171. 171.

    See, e.g., ECtHR, Bazorkina v. Russia, judgment of 27 July 2006, Application No. 69481/01, para 161; ECtHR, Baysayeva v. Russia, judgment of 5 April 2007, Application No. 74237/01, para 155.

  172. 172.

    ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Applications nos. 39665/98 and 40086/98, para 86; ECtHR, Engel and Others v. the Netherlands, judgment of 8 June 1976, Application nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72.

  173. 173.

    ECtHR, Whitfield and others v. the United Kingdom, judgment of 12 April 2005, Application nos. 46387/99, 48906/99, 57410/00 and 57419/00, paras 38–41.

  174. 174.

    ECtHR, Young v. the United Kingdom, judgment of 16 January 2007, Application No. 60682/00.

  175. 175.

    Id., para 43; ECtHR, Whitfield and others v. the United Kingdom, judgment of 12 April 2005, Application nos. 46387/99, 48906/99, 57410/00 and 57419/00, para 46.

  176. 176.

    ECtHR, Young v. the United Kingdom, judgment of 16 January 2007, Application No. 60682/00, para 43. ECtHR, Whitfield and others v. the United Kingdom, judgment of 12 April 2005, Application nos. 46387/99, 48906/99, 57410/00 and 57419/00, para 48.

  177. 177.

    ECtHR, Campbell v. The United Kingdom, judgment of 25 March 1992, Application No. 13590/88, para 53.

  178. 178.

    Council of Europe, European Treaty Series No. 035 of 18 October 1961, entry into force 26 February 1965; the ESC was revised by European Treaty Series No. 163 of 3 May 1996, entry into force 1 July 1999.

  179. 179.

    Council of Europe, Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, European Treaty Series No. 158 of 9 November 1995, entry into force 1 July 1998.

  180. 180.

    Van Zyl Smit 2006, p. 110. See, also, Coyle 2006, p. 101.

  181. 181.

    CoE, Resolution (73)5, Standard Minimum Rules for the Treatment of Prisoners, adopted by the Committee of Ministers on 19 January 1973 at the 217th meeting of the Ministers’ Deputies.

  182. 182.

    CoE, Recommendation (87)3, on the European Prison Rules, adopted by the Committee of Ministers on 12 February 1987 at the 404th meeting of the Ministers’ Deputies.

  183. 183.

    CoE, Recommendation (2006)2, on the European Prison Rules, adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies.

  184. 184.

    See, e.g., Murdoch 2006, p. 15, who states that ‘these European steps are well in advance of international and other regional developments’. In 2011, the Council of Europe had 47 member States.

  185. 185.

    CoE, Recommendation (2006)2, on the European Prison Rules, adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies.

  186. 186.

    See CoE, Parliamentary Assembly Recommendation 1656 (2004), on the situation of European prisons and pre-trial detention centres, 9 June 2004.

  187. 187.

    See De Jonge 2008, p. 571, who suggests that the member States look with a renewed interest at the proposal for a binding document, particularly in light of the European Council Framework Decision on the European enforcement order and the transfer of sentenced persons between Member States of the European Union (7307/05 COPEN 54, of 12 April 2005) which will lead to an increased transfer of sentenced prisoners to their country of origin in order for them to serve their sentence. A matter of concern, in this respect, is the diverging quality of conditions of detention and the treatment of confined persons in the various member States.

  188. 188.

    CoE, 27th Conference of European Ministers of Justice, Report presented by the Secretary General of the Council of Europe, Follow-up to resolutions Nos. 1, 2, 3, 4 and 5, adopted in Helsinki at the 26th Conference of European Ministers of Justice, Yerevan (12–13 October 2006), MJU-27(2006)2, p. 21.

  189. 189.

    Ibid.

  190. 190.

    Instituted by CoE resolution (99)50, accepted by the Committee of Ministers on 7 May 1999.

  191. 191.

    See, e.g., EU, European Parliament resolution of 26 May 1989 on women and children in prison; EU, European Parliament resolution of 18 January 1996 on poor conditions in prisons in the European Union; EU, European Parliament resolution of 17 December 1998 on prison conditions in the European Union: improvements and alternative penalties, A4-0369/98; EU, European Parliament recommendation to the Council of 9 March 2004 on the rights of prisoners in the European Union, 2003/2188(INI); EU, European Parliament legislative resolution on the initiative by the Republic of Austria, the Republic of Finland and the Kingdom of Sweden for adoption of a Council framework decision on the European enforcement order and the transfer of sentenced persons between Member States of the European Union (7307/2005–C6–0139/2005–2005/0805(CNS)), 15 May 2006; and EU, European Parliament resolution of 13 March 2008 on the particular situation of women in prison and the impact of the imprisonment of parents on social and family life, 2009/C 66 E/09.

  192. 192.

    See, e.g., Article 82 of the Treaty on the Functioning of the European Union, which provides, as far as relevant, that ‘[j]udicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions’. See, further, para 2 of the Preamble to the Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA). See, also, para 2 of the Preamble to the European Union and E.U. Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions.

  193. 193.

    In a similar vein, see Van Zyl Smit 2006, p. 113. See, also, Van Zyl Smit 2005, p. 364. Bouloukos and Dammann state that the SMR ‘have provided the basis for bilateral and multilateral co-operation’; see Bouloukos and Dammann 2001, p. 761.

  194. 194.

    EU, European Parliament recommendation to the Council of 9 March 2004 on the rights of prisoners in the European Union, 2003/2188(INI), sub 1(b), 1(d).

  195. 195.

    EU, European Parliament resolution of 13 March 2008 on the particular situation of women in prison and the impact of the imprisonment of parents on social and family life, 2009/C 66 E/09, para 2.

  196. 196.

    EU, European Parliament recommendation of 7 May 2009 to the Council on development of an EU criminal justice area (2009/2012(INI)), P6_TA(2009)0386, sub K.

  197. 197.

    Id., sub 1(a).

  198. 198.

    Adopted by the Ninth International Conference of American States, Bogota, Colombia, 1948.

  199. 199.

    See Cassel 2000, p. 397.

  200. 200.

    Adopted at the Inter-American Specialized Conference on Human Rights, San José, Costa Rica, on 22 November 1969, entry info force on 18 July 1978.

  201. 201.

    Article 4.

  202. 202.

    Article 6.

  203. 203.

    Article 7.

  204. 204.

    Article 8.

  205. 205.

    Article 10.

  206. 206.

    Article 11.

  207. 207.

    Article 12.

  208. 208.

    Article 13.

  209. 209.

    Article 16.

  210. 210.

    Article 17.

  211. 211.

    Article 24.

  212. 212.

    Article 25.

  213. 213.

    See Part II of the Convention entitled ‘Means of Protection’.

  214. 214.

    Article 106 of the OAS Charter. The Charter was signed at the Ninth International Conference of American States of 30 April 1948, entered into force on 13 December 1951.

  215. 215.

    Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (‘Protocol of San Salvador’), adopted at the Eighteenth Regular Session of the General Assembly of the Organization of American States on 17 November 1988, entry into force on 16 November 1999.

  216. 216.

    I-ACtHR, López-Álvarez v. Honduras, judgment of 1 February 2006, para 104.

  217. 217.

    Id., para 105.

  218. 218.

    Id., para 106.

  219. 219.

    Id., para 108.

  220. 220.

    Id., para 110.

  221. 221.

    Id., para 112.

  222. 222.

    Id., para 113.

  223. 223.

    I-ACtHR, “Juvenile Reeducation Institute” v. Paraguay, judgment of 2 September 2004, para 152.

  224. 224.

    Id., para 153.

  225. 225.

    Id., para 154.

  226. 226.

    Id., para 154.

  227. 227.

    Id., para 155.

  228. 228.

    Adopted at the twenty-fourth regular session of the General Assembly to the Organization of American States, Belem do Para, Brazil, on 9 June 1994, entry into force on 28 March 1996. See, also, the International Convention for the Protection of All Persons from Enforced Disappearance, New York, 20 December 2006; entry into force on 23 December 2010; U.N. Doc.A/61/488.

  229. 229.

    Adopted at the twenty-fourth regular session of the General Assembly to the Organization of American States, Belem do Para, Brazil, on 9 June 1994, entry into force on 5 March 1995.

  230. 230.

    Approved by the Commission during its 131st regular period of sessions, held from March 3–14, 2008.

  231. 231.

    African Charter on Human and Peoples’ Rights (1981).

  232. 232.

    See Article 30 of the Charter.

  233. 233.

    ACommHPR, 46th Inter-Session Activity Report on the Special Rapporteur on Prisons and Conditions of Detention in Africa, para 1. According to the Report, ‘[t]he one visit to Tunisia that had been planned was aborted due to lack of a response from the Tunisian authorities to the Commission’s request to undertake the mission’.

  234. 234.

    Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, Mission to the Republic of South Africa, 14–30 June 2004, p. 63.

  235. 235.

    Id., p. 62.

  236. 236.

    Article 1 of the Kampala Declaration.

  237. 237.

    See, e.g., the Déclaration de Ouagadougou pour accélérer la réforme pénale et pénitentiaire en Afrique et Plan d’Action from 2002, which states that ‘[n]otant que ces standards africains ont été reconnus par les Nations Unies comme complémentaires de l'Ensemble de règles minima des Nations Unies pour le traitement des détenus’. See also Article 1 of the Resolution on Prisons in Africa, which was adopted at the 17th Ordinary Session, held from 13 to 22 March 1995 in Togo, and the Robben Island Guidelines.

  238. 238.

    Arab Charter on Human Rights, adopted on 22 May 2004, entry into force on 15 March 2008.

  239. 239.

    Rishmawi 2005, pp. 361–362.

  240. 240.

    Some major points of critique are still valid. This concerns, for instance, Article 7(1) which provides that ‘[s]entence of death shall not be imposed on persons under 18 years of age, unless otherwise stipulated in the laws in force at the time of the commission of the crime’. Emphasis added. See, further, Rishmawi 2005, p. 376.

  241. 241.

    ECtHR, Kalashnikov v. Russia, judgment of 15 July 2002, Application No. 47095/99, paras 102–103.

  242. 242.

    ECtHR, Van der Ven v. The Netherlands, judgment of 4 February 2003, Application No. 50901/99, para 63.

  243. 243.

    ECtHR, Soering v. The United Kingdom, judgment of 11 July 1989, Application No. 14038/88.

  244. 244.

    ECtHR, Selmouni v. France, judgment of 28 July 1999, Application No. 25803/94, para 105.

  245. 245.

    ECtHR, Aksoy v. Turkey, judgment of 26 November 1996, Application No. 21987/93, para 64.

  246. 246.

    In the case of Soering v. The United Kingdom, the Court considered that ‘having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, [Mr. Soering’s] extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3’; ECtHR, Soering v. The United Kingdom, judgment of 11 July 1989, Application No. 14038/88, para 111.

  247. 247.

    ECtHR, G.B. v. Bulgaria, judgment of 11 March 2004, Application No. 42346/98, para 83.

  248. 248.

    Id., para 88.

  249. 249.

    Id., para 84.

  250. 250.

    ECtHR, Hénaf v. France, judgment of 27 November 2003, Application No. 65436/01, para 60.

  251. 251.

    Id., para 56.

  252. 252.

    See, e.g., ECtHR, Ireland v. The United Kingdom, judgment of 18 January 1978, Application No. 5310/71, para 167; ECtHR, Aktaş v. Turkey, Judgment of 24 April 2003, Application No. 24351/94, para 266, and ECtHR, Vladimir Romanov v. Russia, judgment of 24 July 2008, Application No. 41461/02, para 69.

  253. 253.

    ECtHR, Selmouni v. France, judgment of 28 July 1999, Application No. 25803/94, para 101.

  254. 254.

    Adopted by the member States of the Council of Europe, Strasbourg, on 26 November 1987.

  255. 255.

    See Article 1 of the Convention.

  256. 256.

    CPT, First General Report on the CPT’s activities covering the period November 1989 to December 1990, CPT/Inf (91) 3, 20 February 1991, para 6.

  257. 257.

    Van Zyl Smit and Snacken recognise that, because of such a multidisciplinary composition, the Committee could ‘tackle many different aspects linked to the deprivation of liberty’. They further state that ‘insight into the interaction between the characteristics of detention and the risk of inhuman and degrading treatment is based on the extensive penological literature about the psychosocial effects of deprivation of liberty’; Van Zyl Smit and Snacken 2009, p. 17.

  258. 258.

    See, for an insider’s account, Cassese 1996.

  259. 259.

    CPT, First General Report on the CPT’s activities covering the period November 1989 to December 1990, CPT/Inf (91) 3, 20 February 1991, para 6.

  260. 260.

    Peukert 1999, p. 86.

  261. 261.

    CPT, First General Report on the CPT’s activities covering the period November 1989 to December 1990, CPT/Inf (91) 3, 20 February 1991, para 95.

  262. 262.

    Murdoch 2006, p. 45.

  263. 263.

    ECtHR, Bragadireanu v. Romania, judgment of 6 December 2007, Application No. 22088/04, para 74; ECtHR, Hummatov v. Azrbaijan, judgment of 29 November 2007, Applications Nos. 9852/03 and 13413/04, para 76; ECtHR, Mehmet Eren v. Turkey, judgment of 14 October 2008, Application No. 32347/02, para 40; ECtHR, Ismoilov et al. v. Russia, judgment of 24 April 2008, Application No. 2947/06, para 100.

  264. 264.

    Van Zyl Smit and Snacken 2009, p. 15.

  265. 265.

    See, e.g., ECtHR, Tyrer v. the United Kingdom, judgment of 25 April 1978, Application No. 5856/72, para 31, where it is held that the Court ‘cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe’. See, also, ECtHR, Christine Goodwin v. the United Kingdom, judgment of 11 July 2002, Application No. 28957/95, para 75, and ECtHR, Mamatkulov and Askarov v. Turkey, judgment of 4 February 2005, Applications Nos. 46827/99 and 46951/99, para 121.

  266. 266.

    See, e.g., ECtHR, Ramirez Sanchez v. France, judgment of 4 July 2006, Application No. 59450/00, para 130; ECtHR, Ciorap v. Moldova, judgment of 19 June 2007, Application No. 12066/02, para 47; ECtHR, Yakovenko v. Ukraine, judgment of 25 October 2007, Application No. 15825/06, paras 56–60; ECtHR, Guliyev v. Russia, judgment of 19 September 2008, Application No. 24650/02, para 27; ECtHR, Hummatov v. Azrbaijan, judgment of 29 November 2007, Application Nos. 9852/03 and 13413/04, para 77; ECtHR, Mammadov (Jalaloglu) v. Azerbaijan, judgment of 11 April 2007, Application No. 34445/04, para 38; ECtHR, Bragadireanu v. Romania, judgment of 6 December 2007, Application No. 22088/04, para 73.

  267. 267.

    ECtHR, Ireland v. the United Kingdom, judgment of 18 January 1978, Application No. 5310/71, para 162; ECtHR, Peers v. Greece, judgment of 19 April 2001, Application No. 28524/95, para 67. See, for the original argument, Murdoch 2006, p. 51.

  268. 268.

    See the CPT, 15th General Report on the CPT’s Activities, CPT/Inf (2005) 17, 22 September 2005, paras 14–15. See, further, infra, Chap. 7.

  269. 269.

    Although the phase of post-transfer imprisonment falls outside the scope of this research, it would be difficult for the ICTY to sustain that its own UNDU premises do not need to comply with CPT Standards while it demands such compliance from States in respect of the enforcement of sentences.

  270. 270.

    Agreement between the United Nations Interim Administration Mission in Kosovo and the Council of Europe on Technical Arrangements related to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 23 August 2004.

  271. 271.

    I-ACtHR, Tibi v. Ecuador, judgment of 7 September 2004, para 148.

  272. 272.

    Id., para 149.

  273. 273.

    Id., paras 151–152.

  274. 274.

    Id., para 157.

  275. 275.

    I-ACtHR, García-Asto and Ramírez-Rojas v. Peru, order of 25 November 2005, para 221, citing I-ACtHR, Raxcacó-Reyes v. Guatemala, judgment of 15 September 2005, para 95; I-ACtHR, Fermín Ramírez v. Guatemala, judgment of 20 June 2005, para 118; I-ACtHR, Caesar v. Trinidad and Tobago, judgment of 11 March 2005, para 96.

  276. 276.

    I-ACtHR, García-Asto and Ramírez-Rojas v. Peru, order of 25 November 2005, para 221, citing I-ACtHR, Raxcacó-Reyes v. Guatemala, judgment of 15 September 2005, para 95; I-ACtHR, Fermín Ramírez v. Guatemala, judgment of 20 June 2005, para 118; I-ACtHR, Caesar v. Trinidad and Tobago, judgment of 11 March 2005, para 96.

  277. 277.

    I-ACtHR, García-Asto and Ramírez-Rojas v. Peru, order of 25 November 2005, para 227.

  278. 278.

    Id., paras 223, 233 and 235.

  279. 279.

    Id., para 229.

  280. 280.

    Adopted on 9 December 1985 by the Organization of American States; entry into force on 28 February 1987.

  281. 281.

    Articles 1 and 6.

  282. 282.

    Adopted by the African Commission on Human and Peoples’ Rights at its 32nd Ordinary Session, on 17 to 23 October 2002.

  283. 283.

    Guideline 1.

  284. 284.

    Guidelines 2–3.

  285. 285.

    Guidelines 4–14.

  286. 286.

    Guidelines 17–19.

  287. 287.

    Guideline 20.

  288. 288.

    Guideline 34 adds that States should also ‘[t]ake steps to improve conditions in places of detention which do not conform to international standards’.

  289. 289.

    Guidelines 38–44.

  290. 290.

    See, e.g., the Report on the visit to Cameroon from 2002, in which the Special Rapporteur noted the widespread allegations of ‘inmate beating or torture’, and stated as part of his general recommendations that these practices must cease; Report to the Government of the Republic of Cameroon on the visit of the Special Rapporteur on Prisons and Conditions of Detention in Africa From 2 to 15 September 2002, CHPR/37/OS/11/437.

  291. 291.

    De Jonge 2007, p. 282.

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  1. Faculty of Law, Department of Criminal Law, University of Amsterdam, Oudemanhuispoort 4-6, 1012 CN, Amsterdam, Netherlands

    Denis Abels

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Abels, D. (2012). The Protection of Detained Persons Under International Law. In: Prisoners of the International Community. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-888-0_2

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