Contact with the Outside World

Abels, Denis

doi:10.1007/978-90-6704-888-0_8

Denis Abels²

885 Accesses

Abstract

This chapter examines the right of international detainees to contact with the outside world. It is the only substantive right of detainees that is dealt with extensively in this study. The chapter describes and analyses the right of detainees to contact with family and friends, with their counsel and with the media. First, the principles and standards underpinning the detainees’ right to contact with these three categories of persons/institutions are examined. Subsequently, the chapter describes the tribunals’ positive law. The evaluation paragraphs analyse the main (positive law) findings on the basis of the underpinning principles and legal standards. In respect of contact of detainees with their relatives and friends, it appears that part of the law is inaccessible and that certain infringements on the rights of detainees are insufficiently foreseeable. It is further argued that the necessity of such infringements is at times inadequately legitimised. Moreover, it is argued that indigent international detainees and their relatives should be offered financial support in order to enable those relatives to visit their confined loved ones. In the next paragraph, it is argued that, in the international context, the right of detained persons to speak freely and confidentially with their counsel must also apply to other (specified) members of the defence team. Finally, in respect of the right of detainees to contact with the media, the ICTY’s case law is discussed at length, including the decision that some form of interactive communication between detainees and the media must be made possible.

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Notes

1.
See, e.g. Van Kempen 2008, pp. 23–25; Penal Reform International 2001, p. 101.
2.
Feest defines the penal notion of ‘normalisation’ stating that ‘[p]risoners retain all their human, civil, social and political rights, except those necessarily restricted by imprisonment’; Feest 1999, p. 100.
3.
HRC, General Comment 21, Article 10, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994), of 10 April 1992, para 3. Emphasis added.
4.
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. See, in a similar vein, HRC, Salem Saad Ali Bashasha v. The Libyan Arab Jamahiriya, Communication No. 1776/2008, U.N. Doc. CCPR/C/100/D/1776/2008, views of 2 November 2010, para 7.7; HRC, Munguwambuto Kabwe Peter Mwamba v. Zambia, Communication 1520/2006, U.N. Doc. CCPR/C/98/D/1520/2006, views of 10 March 2010, para 6.4; 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; HRC, HRC, Bradley McCallum v. South Africa, Communication 1818/2008, CCPR/C/100/D/1818/2008, views of 2 November 2010, para 6.8; HRC, Sid Ahmed Aber v. Algeria, Communication 1439/2005, U.N. Doc. CCPR/C/90/D/1439/2005, views of 16 August 2007, para 7.7; HRC, Abdelhakim Wanis El Abani (El Ouerfeli) v. The Libyan Arab Jamahiriya, Communication 1640/2007, U.N. Doc. CCPR/C/99/D/1640/2007, views of 14 September 2010, para 7.7.
5.
ECtHR, Golder v. the United Kingdom, judgment of 21 February 1975, Application No. 4451/70.
6.
See, e.g., ECtHR, Ciorap v. Moldova, judgment of 19 June 2007, Application No. 12066/02, para 107; ECtHR, Hirst v. the United Kingdom (No. 2), judgment of 6 October 2005, Application No. 74025/01, para 69.
7.
I-ACtHR, López-Álvarez v. Honduras, judgment of 1 February 2006, para 104.
8.
I-ACommHR, Annual Report of the Inter-American Commission on Human Rights 2007, OEA/Ser.L/V/II.130, Doc. 22, Rev. 1, 29 December 2007, para 308.
9.
Regulation 101 of the ICC RoC; Rule 64 of the ICTY Rules of Detention; Rule 64 of the ICTR Rules of Detention.
10.
Office of the United Nations High Commissioner for Human Rights 2005, p. 122.
11.
An exception is made in respect of Rule 47 of the SCSL Rules of Detention as far as this Rule makes possible the restriction or regulation of contact at the Registrar’s own initiative. This, then, concerns a measure imposed by the highest detention authority, and should not be regarded as a regime change imposed or requested by an “outside official” (President, Judge, Chamber or Prosecutor) and, therefore, will be discussed as far as relevant in this chapter.
12.
An interesting discussion on the topic is provided in Harrington 2001–2002, pp. 521–549. See, further, Van Kempen 2008, pp. 40–42.
13.
Danneskiold stresses the positive impact of marriage on a prisoner’s rehabilitation through the maintaining of relationships and suggests a positive effect of in-prison marriage on recidism rates and good conduct in prison; Danneskiold 1977–1978, p. 490. For some relevant European case-law, see ECommHR, Hamer v. the United Kingdom, Admissibility Decision of 13 October 1977, Application No. 7114/75; ECtHR, Jaremowicz v. Poland, judgment of 5 January 2010, Application No. 24023/03; ECtHR, Frasik v. Poland, judgment of 5 January 2010, Application No. 22933/02.
14.
Van Zyl Smit and Snacken 2009, p. 213.
15.
Speer 1976, p. 178.
16.
See, e.g., London Rogal 1983, p. 203; Christian 2005, p. 42; Liebling 2004, p. 325; CoE, Opinion of the Commissioner for Human Rights regarding family visits to persons deprived of their liberty, Strasbourg, 16 June 2008, CommDH(2008)15, para 10.
17.
Easton 2011, p. 141.
18.
Harman et al. 2007, p. 798.
19.
Murray 2005, p. 442; Codd 2008, p. 24; Penal Reform International 2001, p. 103; Van Zyl Smit and Snacken 2009, p. 229.
20.
Iddings stresses the importance of contact by phone, particularly for illiterate persons; see Iddings 2006, p. 168.
21.
Codd 2008, p. 25.
22.
Murray 2005, p. 442; Codd 2008, p. 24.
23.
It has been recognised that long periods of separation (due to incarceration) can lead to marital unstableness and divorce; see Harman et al. 2007, p.794. See further London Rogal 1983, p. 223; La Vigne et al. 2005, p. 328; Tewksbury and DeMichele 2005, p. 308.
24.
Lewis 2004–2005, p. 101; Mills and Codd 2007, p. 679; Penal Reform International 2001, p. 101, 103; CoE, Opinion of the Commissioner for Human Rights regarding family visits to persons deprived of their liberty, Strasbourg, 16 June 2008, CommDH(2008)15, para 10; Van Zyl Smit and Snacken 2009, p. 213; Livingstone et al. 2008, p. 301.
25.
Livingstone et al. 2008, p. 302.
26.
Horowitz 1976–1977, p. 301.
27.
Lippke 2007, p. 183.
28.
ICTY, Judgement on Sentencing Appeal, Prosecutor v. Bralo, Case No. IT-95-17-A, A. Ch., 2 April 2007, para 81.
29.
London Rogal 1983, pp. 223–224; Tewksbury and DeMichele 2005, p. 295; CoE, Opinion of the Commissioner for Human Rights regarding family visits to persons deprived of their liberty, Strasbourg, 16 June 2008, CommDH(2008)15, para 10.
30.
La Vigne et al. 2005, p. 316; Lewis 2004–2005, p. 101; Comfort 2002, p. 469; Tewksbury and DeMichele 2005, p. 297; Mills and Codd 2007, p. 672, 673; Iddings 2006, pp. 169–170; Codd 2008, p. 23; Easton 2011, p. 142.
31.
Harman et al. 2007, p. 795; Mills and Codd 2007, pp. 674–675.
32.
La Vigne et al. 2005, p. 315.
33.
More difficult to imagine, however, is how family relationships may play a role in preventing recidivism where it concerns system criminality as dealt with by international criminal justice.
34.
Office of the United Nations High Commissioner for Human Rights 2005, p. 121.
35.
Tewksbury and DeMichele 2005, p. 297; Christian 2005, pp. 33–34.
36.
London Rogal 1983, p. 224; La Vigne et al. 2005, p. 315; Hoffman 1987, p. 1416, 1419, 1425; Jones 2002–2003, p. 99; Stewart 2002, pp. 171–172; Mills and Codd 2007, p. 683, 685; Codd 2008, p. 64.
37.
Mills and Codd 2007, p. 686.
38.
Murray 2005, p. 446. See, in further detail, Codd 2008, pp. 71–72.
39.
Murray 2005, p. 444. See, also, Codd 2008.
40.
Easton 2011, p. 141. See, in a similar vein, Van Zyl Smit and Snacken 2011, p. 212.
41.
Christian 2005, p. 41.
42.
Office of the United Nations High Commissioner for Human Rights 2005, p. 121. See, also, Penal Reform International 2001, p. 106.
43.
London Rogal 1983, p. 229.
44.
Id., p. 230, 236; Lewis 2004–2005, p. 103; Stewart 2002, p. 172.
45.
Stewart 2002, p. 172.
46.
Murray 2005, p. 444.
47.
Tewksbury and DeMichele 2005, pp. 297–298. Comfort, in this regard, even speaks of ‘mortification of prison visitors through the systematic devaluation of their time and the rigorous curtailing of their bodily comfort and presentation under the guise of an institutional rhetoric of “security”’; Comfort 2003, p. 80, 82, 101, 102. At page 103, Comfort states that ‘[w]hile the ostensible function of the prison when handling visitors is that of a “people-processing organization” (…) the cumulative dishonors it inflicts—the routinization of long and unpredictable waits, containment in an inhospitable and inscrutable environment, interference with self-presentation, the denial of private belongings—make it akin to a “people-changing organization” (…) that defines and profoundly transforms the public and personal identities of women’. See, further, Mills and Codd 2007, p. 683, 684; Codd 2008, p. 59.
48.
Mills and Codd 2007, p. 680; Murray 2005, p. 454.
49.
Stewart 2002, p. 166; Morris 1965, p. 291; Tewksbury and DeMichele 2005, p. 298; Christian 2005, p. 37; Mills and Codd 2007, p. 680; Murray 2005, p. 446, 454; Codd 2008, p. 153; Easton 2011, p. 144; Van Zyl Smit and Snacken, p. 239.
50.
Iddings 2006, p. 169.
51.
La Vigne et al. 2005, p. 332.
52.
Mills and Codd 2007, p. 679.
53.
Murray 2005, p. 445.
54.
Mills and Codd 2007, p. 680; Murray 2005, p. 445.
55.
Mills and Codd 2007, p. 681; Murray 2005, p. 455; Liebling 2004, p. 326; Office of the United Nations High Commissioner for Human Rights 2005, p. 121.
56.
Mills and Codd 2007, p. 681; Murray 2005, p. 445, 455; Penal Reform International 2001, p. 106.
57.
Office of the United Nations High Commissioner for Human Rights 2005, p. 121; EU, European Parliament, Report on the situation of women in prison and the impact of the imprisonment of parents on social and family life (2007/2116(INI)), Committee on Women’s Rights and Gender Equality, Rapporteur Marie Panayotopoulos-Cassiotou, 5 February 2008, A6-0033/2008, p. 15.
58.
Van Zyl Smit and Snacken 2009, p. 227.
59.
See, in a similar vein, Penal Reform International 2001, p. 105.
60.
Office of the United Nations High Commissioner for Human Rights 2005, p. 119; Penal Reform International 2001, p. 105.
61.
Penal Reform International 2001, p. 106.
62.
See, in a similar vein, id., p. 105.
63.
Office of the United Nations High Commissioner for Human Rights 2005, p. 123.
64.
Ibid.
65.
Penal Reform International 2001, p. 106.
66.
London Rogal 1983, p. 237. See, in a similar vein, Note 1974, p. 398.
67.
Wyatt 2005–2006, p. 599.
68.
See, e.g., Stewart 2002, p. 174; Mills and Codd 2007, p. 681; Bates 1989, p. 139; Wyatt 2005–2006, p. 600; Goetting 1982, p. 145, 153.
69.
London Rogal 1983, p. 238; Hensley et al. 2000, p. 139; Sullivan 1969–1970, p. 439; Goetting 1982, p. 144; Codd 2008, p. 157; Easton 2011, p. 171.
70.
The right to sexuality has been recognised by the ECtHR as an element of the right to private life. See Van Zyl Smit and Snacken 2009, p. 242 and the case-law cited there.
71.
Bates 1989, p. 130, 131; Hensley et al. 2002, 62; Goetting 1982, p. 142.
72.
Wyatt 2005–2006, p. 597.
73.
Van Zyl Smit and Snacken 2009, p. 242.
74.
Harman et al. 2007, p. 797; Hayner 1972, p. 45.
75.
Hensley et al. 2000, p. 139; Note 1974, p. 423; Bates 1989, p. 132; Wyatt 2005–2006, p. 600; Sullivan 1969–1970, p. 439; Goetting 1982, p. 143; Codd 2008, p. 157; Easton 2011, p. 169.
76.
Goetting 1982, p. 143; Easton 2011, p. 169.
77.
Comfort 2002, p. 486; Hensley et al. 2000, p. 139.
78.
Comfort 2002, p. 487; Easton 2011, p. 171; Penal Reform International 2001, p. 107.
79.
Foucault 1977, p. 16.
80.
London Rogal 1983, p. 238; Hensley et al. 2000, p. 139; Note 1974, p. 398; Bates 1989, p. 130; Wyatt 2005–2006, p. 597–598; Goetting 1982, p. 142.
81.
Wurzer-Leenhouts 2000, p. 83.
82.
Office of the United Nations High Commissioner for Human Rights 2005, p. 121.
83.
Penal Reform International 2001, p. 102.
84.
HRC, General Comment 16, Article 17, U.N. Doc. HRI/GEN/1/Rev.1 at 21 (1994), 23rd session, 1988, para 8.
85.
SPT, Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Maldives, U.N. Doc CAT/OP/MDV/1, 26 February 2009, para 225. See, also, SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Republic of Paraguay, U.N. Doc CAT/OP/PRY/1, 7 June 2010, para 206.
86.
SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Honduras, U.N. Doc CAT/OP/HND/1, 10 February 2010, para 248.
87.
SPT, Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Maldives, U.N. Doc CAT/OP/MDV/1, 26 February 2009, para 225.
88.
SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Mexico, U.N. Doc CAT/OP/MEX/1, 31 May 2010, para 127.
89.
SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Republic of Paraguay, U.N. Doc CAT/OP/PRY/1, 7 June 2010, para 208.
90.
See, e.g., CAT, Report of the Committee Against Torture, Twenty-fifth session (13–24 November 2000), Twenty-sixth session (30 April-18 May 2001), General Assembly, Official Records, Fifty-sixth session, Supplement No. 44 (A/56/44), para 81.
91.
Report of the Special Rapporteur on the question of torture, addendum, Visit to Spain, Theo van Boven, U.N. Doc. E/CN.4/2004/56/Add.2, 6 February 2004, para 51. See, also, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mission to Kazakhstan, Manfred Nowak, U.N. Doc. A/HRC/13/39/Add.3, 16 December 2009, para 82(c).
92.
Report of the Special Rapporteur on the question of torture, addendum, Visit to Spain, Theo van Boven, U.N. Doc. E/CN.4/2004/56/Add.2, 6 February 2004, para 51.
93.
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mission to Kazakhstan, Manfred Nowak, U.N. Doc. A/HRC/13/39/Add.3, 16 December 2009, para 30.
94.
Paragraph (2) adds that ‘[p]risoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons’. See, in a similar vein, Principle 16(2) of the U.N. Body of Principles.
95.
Rule 79 of the SMR.
96.
Rule 80 of the SMR.
97.
Principle 15 of the U.N. Body of Principles.
98.
Principle 16(1) of the U.N. Body of Principles. See, also, Rule 24(8) and (9) of the EPR.
99.
Principle 16(4) of the U.N. Body of Principles.
100.
Principle 16(4) of the U.N. Body of Principles.
101.
As stated in the introduction, the present chapter will not focus on the right to marry and found a family. The discussion below will, therefore, not concern ECtHR case-law on these rights.
102.
Van Zyl Smit and Snacken 2009, p. 213, 217.
103.
ECtHR, Messina v. Italy (No. 2), judgment of 28 September 2000, Application No. 25498/94, para 61.
104.
Ibid. See, also, ECtHR, Kucera v. Slovakia, judgment of 17 July 2007, Application No. 48666/99, para 127; ECtHR, Hillgartner v. Poland, judgment of 3 March 2009, Application No. 37976/06, para 40.
105.
ECtHR, Klamecki v. Poland (No. 2), judgment of 3 April 2003, Application No. 31583/96, para 144.
106.
ECtHR, Messina v. Italy (No. 2), judgment of 28 September 2000, Application No. 25498/94, para 65.
107.
ECtHR, Klamecki v. Poland (No. 2), judgment of 3 April 2003, Application No. 31583/96, para 144; ECtHR, Kucera v. Slovakia, judgment of 17 July 2007, Application No. 48666/99, para 127.
108.
Murdoch 2006, p. 239.
109.
ECtHR, Ostrovar v. Moldova, judgment of 13 September 2005, Application No. 35207/03.
110.
Id., para 107, 98.
111.
Id., para 100. These findings were also applicable to the regulations regarding visits.
112.
ECtHR, Estrikh v. Latvia, judgment of 18 January 2007, Application No. 73819/01.
113.
Id., para 167.
114.
See, e.g., ECtHR, Ciorap v. Moldova, judgment of 19 June 2007, Application No. 12066/02, paras 102–104; ECtHR, Stojanovic v. Serbia, judgment of 19 May 2009, Application No. 34425/04, paras 73–75.
115.
ECtHR, Estrikh v. Latvia, judgment of 18 January 2007, Application No. 73819/01, para 171.
116.
Id., para 173.
117.
ECtHR, Vlasov v. Russia, judgment of 12 June 2008, Application No. 78146/01, para 124.
118.
Id., para 125.
119.
Id., para 126. See, in a similar vein, ECtHR, Moiseyev v. Russia, judgment of 9 October 2008, Application No. 62936/00, para 250.
120.
ECtHR, Onoufriou v. Cyprus, judgment of 7 January 2010, Application No. 24407/04.
121.
Id., para 94.
122.
Id., para 95. See, in a similar vein, ECtHR, Shalimov v. Ukraine, judgment of 4 March 2010, Application No. 20808/02, para 88.
123.
ECtHR, Onoufriou v. Cyprus, judgment of 7 January 2010, Application No. 24407/04, para 96.
124.
ECtHR, Shalimov v. Ukraine, judgment of 4 March 2010, Application No. 20808/02, para 85. Emphasis added.
125.
ECtHR, Messina v. Italy (No. 2), judgment of 28 September 2000, Application No. 25498/94, para 66. See, in a similar vein, ECtHR, Enea v. Italy, judgment of 17 September 2009, Application No. 74912/01, para 126.
126.
ECtHR, Messina v. Italy (No. 2), judgment of 28 September 2000, Application No. 25498/94, paras 69–70.
127.
Id., para 73; ECtHR, Enea v. Italy, judgment of 17 September 2009, Application No. 74912/01, para 128, 129.
128.
ECtHR, Ferla v. Poland, judgment of 20 May 2008, Application No. 55470/00, paras 47–48; ECtHR, Kucera v. Slovakia, judgment of 17 July 2007, Application No. 48666/99, paras 130–131; ECtHR, Kulikowski v. Poland, judgment of 19 May 2009, Application No. 18353/03, para 77.
129.
ECtHR, Lorsé and others v. the Netherlands, judgment of 4 February 2003, Application No. 52750/99, para 83.
130.
Id., paras 85–86.
131.
ECtHR, Klamecki v. Poland (No. 2), judgment of 3 April 2003, Application No. 31583/96, para 147.
132.
Id., para 150.
133.
Id., para 151.
134.
ECtHR, Ciorap v. Moldova, judgment of 19 June 2007, Application No. 12066/02.
135.
Id., para 111.
136.
Id., para 107.
137.
Ibid.
138.
Id., paras 117–118.
139.
ECtHR, Moiseyev v. Russia, judgment of 9 October 2008, Application No. 62936/00, para 247.
140.
Id., paras 250–251.
141.
Id., para 255.
142.
Id., para 258.
143.
ECtHR, Selmani v. Switzerland, Admissibility Decision of 28 June 2001, Application No. 70258/01.
144.
Ibid. See, in a similar vein, ECtHR, Plepi et al. v. Albania and Greece, Admissibility Decision of 4 May 2010, Application No. 11546/05; 33285/05; 33288/05.
145.
ECtHR, Selmani v. Switzerland, Admissibility Decision of 28 June 2001, Application No. 70258/01. See, in a similar vein, ECommHR, Hacisuleymanoglu v. Italy, Admissibility Decision of 20 October 1994, Application No. 23241/94.
146.
ECtHR, Wainwright v. the United Kingdom, judgment of 26 September 2006, Application No. 12350/04.
147.
Id., para 43.
148.
Id., para 44.
149.
Id., para 48.
150.
Id., para 55.
151.
ECtHR, Aliev v. Ukraine, judgment of 29 April 2003, Application No. 41220/98, para 163.
152.
Id., para 188.
153.
ECtHR, Dickson v. the United Kingdom, judgment of 4 December 2007, Application No. 44362/04, para 81.
154.
Ibid. Emphasis added.
155.
This topic was excluded from this study; see, supra, p. 535. See, in more detail, Van Zyl Smit and Snacken 2009, p. 245.
156.
Correspondence and telephone communications are discussed together in this subparagraph as the ECtHR’s case-law has held that these modes of communication attract the same protection. See id., p. 227 and the references cited there. See, further, Harris et al. 2009, p. 381, where it is held that ‘[i]n telephone-tapping cases, the literal meaning of ‘correspondence’ has been expanded to include telephone communications’. See also the case-law cited there.
157.
ECtHR, Silver and others v. the United Kingdom, judgment of 25 March 1983, Application No. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, para 84.
158.
Id., paras 86–88; ECtHR, Aliev v. Ukraine, judgment of 29 April 2003, Application No. 41220/98, para 170.
159.
ECtHR, Silver and others v. the United Kingdom, judgment of 25 March 1983, Application No. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, paras 97–98.
160.
Id., para 98.
161.
ECtHR, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Application No. 9659/82; 9658/82, para 61.
162.
ECtHR, Lorsé and others v. the Netherlands, judgment of 4 February 2003, Application No. 52750/99, para 83.
163.
Id., paras 85–86.
164.
ECtHR, Puzinas v. Lithuania (No. 2), judgment of 9 January 2007, Application No. 63767/00.
165.
Id., para 33. Emphasis added.
166.
Ibid. See, in a similar vein, ECtHR, Vlasov v. Russia, judgment of 12 June 2008, Application No. 78146/01, para 134.
167.
ECtHR, Puzinas v. Lithuania (No. 2), judgment of 9 January 2007, Application No. 63767/00, para 34.
168.
ECtHR, Messina v. Italy (No. 2), judgment of 28 September 2000, Application No. 25498/94, para 83.
169.
Id., para 81.
170.
ECtHR, Ciapas v. Lithuania, judgment of 16 November 2006, Application No. 4902/02.
171.
Id., para 24.
172.
Id., para 25.
173.
Ibid.
174.
Ibid.
175.
See, more in detail, infra, p. 665.
176.
ECtHR, Petrov v. Bulgaria, judgment of 22 May 2008, Application No. 15197/02, para 44.
177.
Id., paras 44–45.
178.
ECtHR, Moiseyev v. Russia, judgment of 9 October 2008, Application No. 62936/00.
179.
Id., para 266.
180.
Ibid.
181.
Ibid.
182.
ECtHR, Enea v. Italy, judgment of 17 September 2009, Application No. 74912/01, para 143.
183.
ECtHR, Savenkovas v. Lithuania, judgment of 18 November 2008, Application No. 871/02.
184.
Id., para 97.
185.
Van Zyl Smit and Snacken 2009, p. 224.
186.
ECtHR, Onoufriou v. Cyprus, judgment of 7 January 2010, Application No. 24407/04, para 109, 112.
187.
Id., para 109, 113.
188.
Id., para 110.
189.
Id., para 109, 113.
190.
CPT, Report to the Azerbaijani Government on the visit to Azerbaijan carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002, CPT/Inf(2004)36, Strasbourg, 7 December 2004, para 139.
191.
ECtHR, Vlasov v. Russia, judgment of 12 June 2008, Application No. 78146/01, para 138.
192.
Ibid.
193.
ECtHR, Yankov v. Bulgaria, judgment of 11 December 2003, Application No. 39084/97, para 129; ECtHR, Pedersen and Baadsgaard v. Denmark, judgment of 17 December 2004, Application No. 49017/99, paras 72–74.
194.
ECtHR, Yankov v. Bulgaria, judgment of 11 December 2003, Application No. 39084/97, para 129.
195.
ECtHR, Petrov v. Bulgaria, judgment of 22 May 2008, Application No. 15197/02, para 46. The applicant relied on Article 14 in conjunction with Article 8.
196.
Id., para 51.
197.
ECtHR, A.B. v. the Netherlands, judgment of 29 January 2002, Application No. 37328/97, para 92. Van Zyl Smit and Snacken state in connection to this remark by the Court, that ‘in the light of the overall trend of the Court’s decisions towards strengthening the right of communication with the outside world, this cannot be regarded as an irreversible rule’; Van Zyl Smit and Snacken 2009, p. 227.
198.
ECtHR, A.B. v. the Netherlands, judgment of 29 January 2002, Application No. 37328/97, para 93.
199.
Ibid.
200.
ECtHR, Doerga v. the Netherlands, judgment of 27 April 2004, Application No. 50210/99, para 43.
201.
Id., para 45.
202.
Id., para 50.
203.
Id., para 52.
204.
Id., para 53. It took until 2011 for the decision to be implemented in the Dutch legal order; see Besluit van 23 september 2010, houdende wijziging van het Reglement justitiële jeugdinrichtingen, Reglement verpleging ter beschikking gestelden en de Penitentiaire maatregel, in verband met regels over het bewaren en verstrekken van opgenomen telefoongesprekken (Besluit toezicht telefoongesprekken justitiële inrichtingen), of 7 October 2010.
205.
CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 24.
206.
Rule 99 sub (b) of the EPR.
207.
Rule 24(2) of the EPR.
208.
CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 24.
209.
Ibid.
210.
Ibid.
211.
Ibid.
212.
Ibid.
213.
Rule 24(3) of the EPR.
214.
Rule 24(4) of the EPR.
215.
CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 24.
216.
CoE, Recommendation (98)7, concerning the ethical and organisational aspects of health care in prison, adopted by the Committee of Ministers on 8 April 1998 at the 627th meeting of the Ministers’ Deputies, para 68.
217.
Rule 24(5) of the EPR.
218.
CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 24.
219.
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 J.
220.
EU, European Parliament, Report on the situation of women in prison and the impact of the imprisonment of parents on social and family life (2007/2116(INI)), Committee on Women’s Rights and Gender Equality, Rapporteur Marie Panayotopoulos-Cassiotou, 5 February 2008, A6-0033/2008, pp. 14–15.
221.
CoE, Opinion of the Commissioner for Human Rights regarding family visits to persons deprived of their liberty, Strasbourg, 16 June 2008, CommDH(2008)15, para 10.
222.
CoE, Opinion of the Commissioner for Human Rights regarding family visits to persons deprived of their liberty, Strasbourg, 16 June 2008, CommDH(2008)15, paras 14, 15.
223.
CPT, Second General Report on the CPT’s activities covering the period 1 January to 31 December 1991, CPT/Inf (92) 3, 13 April 1992, para 51.
224.
See, e.g., CPT, Report to the Government of the Federal Republic of Germany on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 20 December 1991, CPT/Inf(93)13, Strasbourg, 19 July 1993, para 168; CPT, Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 26 March to 7 April 1995, CPT/Inf(97)1[Part 1], Strasbourg, 25 September 1995, para 156.
225.
See, e.g., CPT, Report to the Government of the Federal Republic of Germany on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 20 December 1991, CPT/Inf(93)13, Strasbourg, 19 July 1993, para 171.
226.
Id., para 172.
227.
Ibid.
228.
CPT, Second General Report on the CPT’s activities covering the period 1 January to 31 December 1991, CPT/Inf (92) 3, 13 April 1992, para 51. See, further, CPT, Report to the Government of the Federal Republic of Germany on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 20 December 1991, CPT/Inf(93)13, Strasbourg, 19 July 1993, para 170, 174.
229.
Id., para 173.
230.
See, e.g., CPT, Report to the Azerbaijani Government on the visit to Azerbaijan carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002, CPT/Inf(2004)36, Strasbourg, 7 December 2004, para 140. Azerbaijani sentenced prisoners ‘could receive up to four short visits (2 h) per month and one long visit (72 h) up to four times per year.
231.
See, e.g., CPT, Report to the Government of the Federal Republic of Germany on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 20 December 1991, CPT/Inf(93)13, Strasbourg, 19 July 1993, para 176; CPT, Report to the German Government on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment from 14 to 26 April 1996, CPT/Inf(97)9[Part 1], Strasbourg, 17 July 1997, para 174; CPT, Report to the Government of Bosnia and Herzegovina carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 27 April to 9 May 2003, CPT/Inf(2004)40, Strasbourg, 21 December 2004, para 102.
232.
See De Lange 2008, p. 161 and the references cited there.
233.
Ibid.
234.
See, also, CPT, Report to the German Government on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 20 November to 2 December 2005, CPT/Inf(2007)18, Strasbourg, 18 April 2007, para 150.
235.
CPT, Report to the German Government on the visit to Germany carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment from 14 to 26 April 1996, CPT/Inf(97)9[Part 1], Strasbourg, 17 July 1997, para 173; CPT, Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 26 March to 7 April 1995, CPT/Inf(97)1[Part 1], Strasbourg, 25 September 1995, para 159; CPT, Report to the Azerbaijani Government on the visit to Azerbaijan carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002, CPT/Inf(2004)36, Strasbourg, 7 December 2004, para 67; CPT, Report to the Albanian Government on the visit to Albania carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 23 May to 3 June 2005, CPT/Inf(2006)24, Strasbourg, 12 July 2006, para 135.
236.
CPT, Report to the Azerbaijani Government on the visit to Azerbaijan carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 8 to 12 December 2008, CPT/Inf(2009)28, Strasbourg, 26 November 2009, para 43.
237.
CPT, Report to the Azerbaijani Government on the visit to Azerbaijan carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002, CPT/Inf(2004)36, Strasbourg, 7 December 2004, para 139.
238.
See, on this ‘notification right’, Penal Reform International 2001, pp. 103–104. See, further, SPT, Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Maldives, U.N. Doc CAT/OP/MDV/1, 26 February 2009, para 101, where it is stated that ‘[a] person held without anyone knowing his whereabouts is more vulnerable to abuse. The right to notify someone on the outside about the fact of one’s deprivation of liberty is an important safeguard against ill-treatment; those who might otherwise resort to ill-treatment may be deterred by the knowledge that someone outside has been notified and may be vigilant about the detained person’s well-being’. See, in a similar vein, SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Mexico, U.N. Doc CAT/OP/MEX/1, 31 May 2010, paras 124–125; SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Honduras, U.N. Doc CAT/OP/HND/1, 10 February 2010, para 151; CAT, Report of the Committee Against Torture, Twenty-fifth session (13–24 November 2000), Twenty-sixth session (30 April-18 May 2001), General Assembly, Official Records, Fifty-sixth session, Supplement No. 44 (A/56/44), para 39.
239.
Rules 58 to 64bis of the Rules of Detention.
240.
See, in a similar vein, Rule 57(A) of the STL Rules of Detention. Rule 68(A) of the STL Rules of detention adds that ‘[t]elephone calls may be made by a Detainee between the hours of 9 a.m. and 5 p.m. (The Hague time), subject to the reasonable demands of the Tribunal and of the schedule of the Detention Facility and any financial limits established by the Registrar in accordance with Rule 57(C)’. Paragraph (C) adds that ‘[i]n exceptional circumstances, the Chief of Detention may permit Detainees to make calls outside the hours set out in paragraph (A)’.
241.
United Nations Detention Unit, Regulations to Govern the Supervision of Visits to and Communications with Detainees, IT/98/Rev.4 (hereafter in this subparagraph referred to as ‘the Regulations’).
242.
See the Preamble to the Regulations. See, further, Rules 64 and 64bis of the ICTY Rules of Detention.
243.
Regulation 5(A).
244.
Regulation 5(B).
245.
Regulation 5(C).
246.
Regulation 14(B).
247.
Regulation 2 in conjunction with Regulation 14(A). Regulation 14(A) does not give detained persons the right to send parcels from UNDU.
248.
Regulation 4(A).
249.
Regulation 4(B).
250.
The Prison Regulations of Spandau Allied Prison stipulated that ‘[t]he Governorate will supervise all correspondence of prisoners. Copies of all correspondence to and from prisoners will be kept in their personal files’; Cited in Goda 2007, Appendix, p. 290.
251.
Regulation 6(A).
252.
This used to be explicitly provided for in Regulation 7(A) of the pre-2009 version of the Regulations, but was deleted in 2009.
253.
Regulation 6(B).
254.
Regulation 9(A).
255.
Regulation 10.
256.
Regulation 9(B).
257.
Regulation 9(C) and (D).
258.
Regulation 12.
259.
See, in more detail, supra, Chap. 5.
260.
ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 24 sub (J).
261.
Regulation 16(A).
262.
Regulation 16(B). See, in a similar vein, Rule 68(B) of the STL Rules of Detention. See, also, Office of the United Nations High Commissioner for Human Rights 2005, p. 123.
263.
Regulation 17(A).
264.
Regulation 17(B).
265.
Regulation 18(A).
266.
Regulation 18(B).
267.
Regulation 18(C).
268.
Regulation 19.
269.
Ibid.
270.
See Regulation 20(A) of United Nations Detention Unit, Regulations to Govern the Supervision of Visits to and Communications with Detainees, IT/98/Rev. 3.
271.
United Nations Detention Unit, House Rules for Detainees, as amended June 1995, IT/99, issued by the Registrar April 1995.
272.
ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 21 May 1997; ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 23 May 1997.
273.
ICTY, Decision, Prosecutor v. Šešelj, Case No. IT-03-67-PT, Deputy Registrar, 11 December 2003; ICTY, Decision, Prosecutor v. Milošević, Case No. IT-02-54, Deputy Registrar, 11 December 2003.
274.
ICTY, Decision, Prosecutor v. Lukić et al., Case No. IT-98-32/1-T, Deputy Registrar, 18 November 2008. See, also, ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor v. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008.
275.
ICTY, Decision on Milan Lukić’s Appeal against the Registrar’s Decision of 18 November 2008, Prosecutor v. Lukić & Lukić, Case No. IT-98-32/1-T, Vice-President, 28 November 2008, para 14.
276.
Regulation 21(A).
277.
Regulation 21 refers to these grounds as ‘situations’. However, in light of the abstract language of Regulation 20, there is no need at all for them to pertain to concrete circumstances. Hence the term ‘grounds’ is to be considered a more appropriate one and will be used in this study.
278.
Regulation 21(A) and (B).
279.
Regulation 21(B).
280.
Regulation 21(C).
281.
Regulation 23(A).
282.
Regulation 23(B). Such copy must be formulated in a language the detainee understands.
283.
See Regulation 20(A) of United Nations Detention Unit, Regulations to Govern the Supervision of Visits to and Communications with Detainees, IT/98/Rev. 3.
284.
Id., Regulation 24.
285.
Id., Regulations 25 and 26.
286.
Regulation 24.
287.
Regulation 25 of United Nations Detention Unit, Regulations to Govern the Supervision of Visits to and Communications with Detainees, IT/98/Rev. 3 read, as far as relevant: ‘If, having reviewed a call, the Registrar determines that there has been no breach of the Rules of Detention (…)’.
288.
Regulation 25.
289.
Regulation 26(A).
290.
Regulation 26(A).
291.
Regulation 26(B).
292.
Regulation 27(A).
293.
Regulation 28.
294.
ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 24 sub (I).
295.
ICTY, Decision on the Motion of the Defence Seeking Modification to the Conditions of Detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 17 April 1996.
296.
ICTY, Press Release, RH/MOW/1132e, The Hague, 30 November 2006.
297.
ICTY, Weekly Press Briefing, 12 September 2007.
298.
Ibid.
299.
ICTY, Registrar’s Submission Pursuant to Rule 33(B) Regarding Radovan Karadžić’s Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 17 February 2011, para 5.
300.
ICTY, Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 28 January 2011, para 6.
301.
Id., para 7.
302.
Id., para 16.
303.
Id., para 8.
304.
Id., para 23.
305.
ICTY, Registrar’s Submission Pursuant to Rule 33(B) Regarding Radovan Karadžić’s Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 17 February 2011, paras 15–17.
306.
Id., para 18.
307.
Id., paras 19–20.
308.
ICTY, Decision on Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, 21 April 2011.
309.
Id., para 11.
310.
Id., para 32.
311.
Id., para 20, 21.
312.
Id., para 32.
313.
Id., para 29.
314.
Id., para 23, 28.
315.
Id., para 24.
316.
Ibid.
317.
Id., para 25.
318.
Id., para 32, 34.
319.
Van Zyl Smit and Snacken 2009, p. 227.
320.
ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Memba Gombo, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 30.
321.
ICTY, Decision on Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, 21 April 2011, para 29.
322.
ICTY, Registrar’s Submission Pursuant to Rule 33(B) Regarding Radovan Karadžić’s Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 17 February 2011, para 17–18.
323.
The author wishes to thank Peter Robinson for drawing his attention to the fact that the President may have been motivated by the perceived need to protect witnesses.
324.
ICTY, interviews conducted by the author with ICTY detainees, The Hague—Netherlands, 22 February 2011.
325.
In a similar vein, see Rule 59(A) of the STL Rules of Detention. The Prison Regulations of Spandau Allied Prison stipulated that ‘[a] prisoner will be permitted to receive one visitor in each period of two calendar months unless the Governorate withdraws this privilege for sufficient reason’; cited in Goda 2007, footnote 250, Appendix, p. 288.
326.
See, in more detail, supra, Chap. 3.
327.
See, in more detail, this chapter, infra, p. 909. See, also, Rule 61(B), which provides that ‘[t]he Registrar shall refuse to allow a person to visit a detainee if he has reason to believe that the purpose of the visit is to obtain information which may be subsequently reported in the media. Rule 64bis(C) shall apply mutatis mutandis to decisions taken by the Registrar under this Sub-Rule’.
328.
The Prison Regulations of Spandau Allied Prison stipulated that ‘[i]f a person applies for permission to visit a prisoner the latter shall be asked whether he wishes to see such person’; Cited in Goda 2007, footnote 250, p. 289.
329.
See, also, Regulation 36.
330.
Rule 63. See, also, ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 17 July 1996. See, in a similar vein, Rule 64 of the STL Rules of Detention. See, further, Rule 38 of the SMR and Article 36 of the Vienna Convention on Consular Relations. The latter provision states in Paragraph 1 that ‘[w]ith a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action’.
331.
United Nations Detention Unit, House Rules for Detainees, as amended June 1995, IT/99, issued by the Registrar April 1995.
332.
Ibid.
333.
See, e.g., ICTY, Press Release, JP/MOW/1082e, The Hague, 31 May 2006.
334.
ICTY, Decision on the Interlocutory Appeal Concerning the Denial of a Request for a Visit to an Accused in the Detention Unit, Prosecutor v. Šešelj, Case No. IT-03-67-AR73.2, A. Ch., 29 January 2004.
335.
ICTY, Decision on Motion Number 19, Prosecutor v. Šešelj, Case No. IT-03-67-PT, T. Ch. II, 30 September 2003.
336.
Regulation 32(A).
337.
Regulation 32(B).
338.
Letter from Frederik Harhoff, Call for 2nd Meeting in detention Committee, Wednesday 21 August 1996, ICTR/JUD 11-2, 19 August 1996, Minutes of the first meeting in the Detention Committee of 6 August 1996, 19 August 1996.
339.
Regulation 33(A).
340.
Regulation 33(B).
341.
Regulation 33(C).
342.
Regulation 33(D).
343.
Regulation 34.
344.
Regulation 35.
345.
See, also, Regulations 38 and 39(A) as well as the Articles 2, 3 and 13 of the Agreement on Security and Order. Rule 62(B) of the STL Rules of Detention states that ‘[a]ll visitors shall comply with the separate requirements of the visiting regime of the Detention Facility. These restrictions may include searches of clothing, personal searches and electronic scanning of possessions on entry to the Detention Facility. Such searches shall not infringe or violate the dignity of the individual and shall be conducted only in accordance with a published operational order issued by the Chief of Detention and only where it is strictly necessary for the security and good order of the Detention Facility’.
346.
Rule 61(D); Article 4 of the Agreement on Security and Order.
347.
Agreement on Security and Order, signed 14 July 1994.
348.
Article 3 of the Agreement on Security and Order.
349.
ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 125.
350.
Regulation 37.
351.
Article 14 of the Agreement on Security and Order.
352.
Article 9 in conjunction with Article 20 of the Agreement on Security and Order.
353.
As to the UNDU, see Regulation 39(A).
354.
Article 5 of the Agreement on Security and Order.
355.
Article 6 of the Agreement on Security and Order.
356.
Article 7 of the Agreement on Security and Order.
357.
Regulation 40(B).
358.
Regulation 42(A).
359.
Regulation 42(B).
360.
Rule 59(B) of the STL Rules of Detention, as far as relevant, provides that ‘all visits shall be conducted within the sight and hearing of the staff of the Detention Facility’. The Prison Regulations of Spandau Allied Prison stipulated that ‘[c]onversations between visitors and prisoners shall be at all times in the presence of a warder or warders and a representative of each of the four governors’; Goda 2007, footnote 250, Appendix, p. 289.
361.
Regulation 43(A).
362.
United Nations Detention Unit, House Rules for Detainees, as amended June 1995, IT/99, issued by the Registrar April 1995.
363.
Ibid.
364.
ICTY, Weekly Press Briefing, 31 October 2001.
365.
Ibid.
366.
Ibid.
367.
Only from May 2008 onwards, the ICTR detention authorities have allowed conjugal visits.
368.
Weinberg de Roca and Rassi 2008, p. 47.
369.
ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the ICTY UNDU, The Hague—Netherlands, 17 June 2011.
370.
Regulation 43(B) of United Nations Detention Unit, Regulations to Govern the Supervision of Visits to and Communications with Detainees, IT/98/Rev. 3.
371.
Regulation 44(A).
372.
Regulation 44(B).
373.
Regulation 44(C).
374.
Regulation 46(A).
375.
Regulation 46(B).
376.
Regulation 47.
377.
Regulation 47 of United Nations Detention Unit, Regulations to Govern the Supervision of Visits to and Communications with Detainees, IT/98/Rev. 3.
378.
Regulation 48 of United Nations Detention Unit, Regulations to Govern the Supervision of Visits to and Communications with Detainees, IT/98/Rev. 3.
379.
Regulation 49(A).
380.
Regulation 49(A).
381.
Regulation 49(B).
382.
Regulation 49(B) of United Nations Detention Unit, Regulations to Govern the Supervision of Visits to and Communications with Detainees, IT/98/Rev. 3.
383.
Regulation 50.
384.
ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 23 May 1997; ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 23 June 1997.
385.
ICTY, Decision, Prosecutor v. Delić, Landžo, Mucić and Delalić, Case No. IT-96-21-T, Registrar, 8 July 1997.
386.
ICTY, Decision on Appeal against the Registrar’s Decision of 19 October 2006, Prosecutor v. Šešelj, Case NO. IT-03-67-PT, President, 23 November 2006, para 2.
387.
ICTY, Decision on the Motion of the Defence Seeking Modification to the Conditions of Detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 17 April 1996; ICTY, Press Release, AMcD/PIO/063-E, The Hague, 23 April 1996.
388.
ICTY, Decision on the Motion of the Defence Seeking Modification to the Conditions of Detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 9 May 1996.
389.
Ibid.
390.
ICTY, Press Release, CC/PIO/146-E, The Hague, 13 January 1997; ICTY, Decision on Motion of the Defence Seeking Modification of the Conditions of Detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 9 January 1997.
391.
ICTY, Open Letter from the Detainees Regarding their Conditions at the ICTY’s Detention Unit, Press Release, CC/PIU/339-E, The Hague, 12 August 1998.
392.
ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.7.2.
393.
ICTY, Report to the President Death of Milan Babić Judge Kevin Parker Vice-President, 8 June 2006.
394.
ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.7.2.
395.
ICTY, Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia, U.N. Doc. A/52/375, S/1997/729, 18 September 1997, para 92.
396.
ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.8.
397.
Ibid.
398.
Id., para 2.8.2.
399.
Ibid.
400.
ICTY, Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. A/53/219, S/1998/737, 10 August 1998, para 151.
401.
ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.8.2.
402.
Ibid.
403.
Ibid.
404.
Ibid.
405.
ICTY, Transcripts, Prosecutor v. Milošević, Case No. IT-02-54, T. Ch., 20 February 2002, Open Session, p. 657, lines 21–24.
406.
Id., p. 658, lines 2–12.
407.
Id., p. 658, lines 21–23.
408.
ICTY, interviews conducted by the author with ICTY detainees, The Hague—Netherlands, 22 February 2011.
409.
See, also, Rule 10, which provides that detainees, ‘[a]s soon as practicable after admission’, the detainee must be given to notify, inter alia, ‘the appropriate diplomatic or consular representative’.
410.
Rule 58.
411.
ICTR, interview conducted by the author with a senior staff member of the ICTR Registry, Arusha–Tanzania, May 2008.
412.
Rule 62.
413.
Regulations to Govern the Supervision of Visits to and Communications with Detainees, established by the Registrar (issued by the Registrar and the Commanding Officer) in May 1996. (Hereafter: Regulations’.) The Regulations are on file with the author.
414.
ICTR, Urgent Motion by Ntabakuze’s Defence Seeking an order for the Registrar to Lift Some of the Measures Restricting Access by Defence Investigators to the Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-99-41-I, T. Ch. III, 30 April 2002, para 21 sub (b).
415.
Regulation 2 of the section of the Regulations entitled ‘correspondence’.
416.
Regulation 4 of the section of the Regulations entitled ‘correspondence’.
417.
Rule 12 stipulates that ‘[a]n inventory shall be taken and recorded of all money, valuables, and other effects belonging to a detainee which, under these Rules or the rules of the host, he is not permitted to retain. The record of inventory shall be signed by the detainee. All such items shall be placed in safe custody or at the request and expense of the detainee, sent to an address provided by him. If the items are retained with the Detention Unit, all reasonable steps shall be taken by the staff of the Detention Unit to keep them in good order. If it is found necessary to destroy an item, this shall be recorded and the detainee informed’.
418.
Regulation 14 of the section of the Regulations entitled ‘correspondence’.
419.
Regulation 7 of the section of the Regulations entitled ‘correspondence’.
420.
Regulation 6 of the section of the Regulations entitled ‘correspondence’.
421.
ICTR, interview conducted by the author with staff members of the ICTR Registry, Arusha–Tanzania, May 2008.
422.
Regulation 7 of the section of the Regulations entitled ‘correspondence’.
423.
Regulation 8 of the section of the Regulations entitled ‘correspondence’.
424.
Ibid.
425.
Regulation 9 of the section of the Regulations entitled ‘correspondence’.
426.
Ibid.
427.
Ibid.
428.
Ibid.
429.
Regulation 10 of the section of the Regulations entitled ‘correspondence’.
430.
Regulation 12 of the section of the Regulations entitled ‘correspondence’.
431.
ICTR, interview conducted by the author with Mr Black, defence counsel working before the ICTR, Arusha–Tanzania, May 2008.
432.
Regulation 5 of the section of the Regulations entitled ‘correspondence’.
433.
Ibid.
434.
Regulation 14 of the section of the Regulations entitled ‘correspondence’.
435.
Regulation 13 of the section of the Regulations entitled ‘correspondence’.
436.
Regulation 1 of the section of the Regulations entitled ‘telephone calls’.
437.
‘Note to all Security Officers & Detainees’, amended: February 2004 (on file with the author).
438.
Ibid.
439.
Regulation 3 of the section of the Regulations entitled ‘telephone calls’.
440.
Ibid.
441.
ICTR, interviews conducted by the author with UNDF detainees, Arusha–Tanzania, May 2008.
442.
Ibid.
443.
Ibid.
444.
Ibid.
445.
Ibid.
446.
Ibid.
447.
Ibid.
448.
Regulation 2 of the section of the Regulations entitled ‘telephone calls’.
449.
Regulation 4 of the section of the Regulations entitled ‘telephone calls’.
450.
Regulation 5 of the section of the Regulations entitled ‘telephone calls’.
451.
Regulation 6 of the section of the Regulations entitled ‘telephone calls’.
452.
Regulation 7 of the section of the Regulations entitled ‘telephone calls’.
453.
Ibid.
454.
Regulation 9 of the section of the Regulations entitled ‘telephone calls’.
455.
Ibid.
456.
Regulation 10 of the section of the Regulations entitled ‘telephone calls’.
457.
Regulation 11 of the section of the Regulations entitled ‘telephone calls’.
458.
Regulation 12 of the section of the Regulations entitled ‘telephone calls’.
459.
Ibid.
460.
Regulation 13 of the section of the Regulations entitled ‘telephone calls’.
461.
ICTR, interview conducted by the author with UNDF detention authorities, Arusha—Tanzania, May 2008.
462.
Regulation 1 of the section of the Regulations entitled ‘visits’.
463.
Ibid.
464.
The Brief is on file with the author.
465.
Article 1 of the Brief.
466.
Rule 60(A) of the STL Rules of Detention stipulates in respect to such requests that ‘[t]he Registrar shall give specific attention to the visits by the family of Detainees, with a view to maintaining relationships’.
467.
Regulation 4 of the section of the Regulations entitled ‘visits’.
468.
Article 2 of the Brief.
469.
Letter from Frederik Harhoff, Call for 2nd Meeting in detention Committee, Wednesday 21 August 1996, ICTR/JUD 11-2, 19 August 1996, Minutes of the first meeting in the Detention Committee of 6 August 1996, 19 August 1996.
470.
Regulation 5 of the section of the Regulations entitled ‘visits’.
471.
See, e.g., ICTR, Decision on the Request Submitted by the Defence, Prosecutor v. Rutaganda, Case No. ICTR-46-S-T, T. Ch., 25 September 1996; ICTR, Decision on Motion for Partial Enforcement of Sentence, Prosecutor v. Serugendo, Case No. ICTR-2005-84-I, T. Ch. I, 22 June 2006.
472.
ICTR, Decision on Motion for Partial Enforcement of Sentence, Prosecutor v. Serugendo, Case No. ICTR-2005-84-I, T. Ch. I, 22 June 2006.
473.
Regulation 5 of the section of the Regulations entitled ‘visits’.
474.
Regulation 6 of the section of the Regulations entitled ‘visits’.
475.
Regulation 7 of the section of the Regulations entitled ‘visits’.
476.
Regulation 9 of the section of the Regulations entitled ‘visits’.
477.
Regulation 8 of the section of the Regulations entitled ‘visits’.
478.
Regulation 10 of the section of the Regulations entitled ‘visits’.
479.
Regulation 12 of the section of the Regulations entitled ‘visits’.
480.
Article 9 of the Brief.
481.
Regulation 15 of the section of the Regulations entitled ‘visits’.
482.
Regulation 16 of the section of the Regulations entitled ‘visits’.
483.
Regulation 17 of the section of the Regulations entitled ‘visits’.
484.
Regulation 18 of the section of the Regulations entitled ‘visits’.
485.
Ibid.
486.
Regulation 19 of the section of the Regulations entitled ‘visits’.
487.
Ibid.
488.
Letter from Frederik Harhoff, Call for 2nd Meeting in detention Committee, Wednesday 21 August 1996, ICTR/JUD 11-2, 19 August 1996, Minutes of the first meeting in the Detention Committee of 6 August 1996, 19 August 1996.
489.
Ibid.
490.
Ibid. Emphasis in the original.
491.
Regulation 20 of the section of the Regulations entitled ‘visits’.
492.
Ibid.
493.
Regulation 21 of the section of the Regulations entitled ‘visits’.
494.
Regulation 22 of the section of the Regulations entitled ‘visits’.
495.
Regulation 14 of the section of the Regulations entitled ‘visits’.
496.
Ibid.
497.
Ibid.
498.
ICTR, interview conducted by the author with UNDF detention authorities, Arusha—Tanzania, May 2008.
499.
ICTR, interview conducted by the author with a senior staff member of the ICTR Registry, Arusha—Tanzania, May 2008.
500.
ICTR, interview conducted by the author with Christopher Black, defence counsel working before the ICTR, Arusha—Tanzania, May 2008.
501.
Ibid.
502.
ICTR, interview conducted by the author with Ben Gumpert, defence counsel working before the ICTR, Arusha—Tanzania, May 2008.
503.
ICTR, interview conducted by the author with Chief Taku, defence counsel working before the ICTR, Arusha–Tanzania, May 2008.
504.
Ibid.
505.
ICTR, interview conducted by the author with Ben Gumpert, defence counsel working before the ICTR, Arusha—Tanzania, May 2008.
506.
ICTR, interview conducted by the author with Peter Robinson, defence counsel working before the ICTR, Arusha—Tanzania, May 2008.
507.
ICTR, interview conducted by the author with Chief Taku, defence counsel working before the ICTR, Arusha—Tanzania, May 2008.
508.
ICTR, interview conducted by the author with senior staff member of the ICTR Registry, Arusha—Tanzania, May 2008.
509.
ICTR, interviews conducted by the author with UNDF detainees, Arusha–Tanzania, May 2008.
510.
Ibid.
511.
Ibid.
512.
Ibid.
513.
Ibid.
514.
Ibid.
515.
Ibid.
516.
ICTR, interview conducted by the author with Ben Gumpert, defence counsel working before the ICTR, Arusha–Tanzania, May 2008.
517.
Ibid.
518.
ICTR, Registrar’s Decision Pursuant to Article 8(3(C) on the Request for Marriage and Other Reliefs, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, Registrar, 12 January 2005, para 1.
519.
Ibid.
520.
Ibid.
521.
Id., para 16.
522.
Id., para 5.
523.
Id., para11.
524.
Id., para 16.
525.
Id., para 17.
526.
Id., para 18.
527.
ICTR, Decision on Hassan Ngeze’s Motion Appealing the Registrar’s Denial of Marriage Facilities, Ngeze et al. v. the Prosecutor, Case No. ICTR-99-52-A, A. Ch., 20 January 2005.
528.
ICTR, Decision on Hassan Ngeze’s Application for Review of the Registrar’s Decision of 12 January 2005, Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, President, 14 September 2005, para 6.
529.
Id., paras 7–8.
530.
Id., para 12.
531.
Id., para 13. Emphasis added.
532.
Id., para 16. Footnotes omitted.
533.
Ibid. Footnotes omitted.
534.
Hirondelle News Agency, 4 July 2008, ICTR/Prisoners—ICTR Authorises Conjugal Visits for Detainees, http://www.hirondellenews.com/content/view/11276/517/ (last visited by the author on 18 March 2011).
535.
Ibid.
536.
Ibid.
537.
Ibid.
538.
Ibid. See, also, Hirondelle News Agency, Arusha, 21 July 2008, International Courts Brainstorm Conjugal Rights for Prisoners, available at http://www.hirondellenews.com/content/view/6306/517/ (last visited by the author on 30 March 2011).
539.
ICTR, interview conducted by the author with a senior staff member of the ICTR Registry, Arusha–Tanzania, May 2008.
540.
Hirondelle News Agency, Arusha, 21 July 2008, International Courts Brainstorm Conjugal Rights for Prisoners, available at http://www.hirondellenews.com/content/view/6306/517/ (last visited by the author on 30 March 2011).
541.
Ibid.
542.
Rule 55(B) of the SCSL Rules of Detention.
543.
Rule 55(C) of the SCSL Rules of Detention.
544.
Rule 9 stipulates that ‘(A) On reception at the Detention Facility, the Chief of Detention shall order that a Detainee’s body and clothes be searched for items that may constitute a danger to: (i) the security and good order of the Detention Facility; or (ii) the health and safety of the Detainee, any other Detainee or any member of the staff of the Detention Facility. (B) Any such items which, in the opinion of the Chief of Detention, fall within paragraph (A) shall be removed and/or destroyed. A record shall be kept of any item removed or destroyed and the Detainee shall be informed in writing thereof by the staff of the Detention Facility’.
545.
SCSL, Detention Operational order No. 3:6, issued on 22 July 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
546.
SCSL, Detention Operational Order No. 11:13, issued on 10 August 2003 by Terry Jackson, Chief of Detention. Emphasis in the original. Document on file with the author.
547.
SCSL, Detention Operational order No. 3:6, issued on 22 July 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
548.
SCSL, Detention Operational Order No. 11:13, issued on 10 August 2003 by Terry Jackson, Chief of Detention. Emphasis in the original. Document on file with the author.
549.
SCSL, Detention Operational order No. 3:6, issued on 22 July 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
550.
SCSL, Detention Operational Order No. 11:13, issued on 10 August 2003 by Terry Jackson, Chief of Detention. Emphasis omitted. Document on file with the author.
551.
Ibid.
552.
Ibid.
553.
Ibid.
554.
Ibid.
555.
Ibid.
556.
SCSL, Detention Operational order No. 3:6, issued on 22 July 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
557.
SCSL, Detention Operational order No. 3:5, issued on 21 July 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
558.
Rule 40(B) of the SCSL Rules of Detention.
559.
SCSL, Detention Operational Order No. 10:3, issued on 20 October 2003 by Barry Wallace, Chief of Detention. Document on file with the author.
560.
Ibid.
561.
SCSL, Detention Operational Order No. 3:1, issued on 18 July 2008 by Ray Cardinal Chief of Detention. Document on file with the author.
562.
Ibid.
563.
SCSL, interviews conducted by the author with SCSL detainees, Freetown–Sierra Leone, October 2009.
564.
SCSL, Detention Operational Order No. 10:3, issued on 20 October 2003 by Barry Wallace, Chief of Detention. Document on file with the author.
565.
Ibid. Emphasis added.
566.
The prescription that calls ‘will be monitored and recorded as per the direction and authority of the Registrar’ is reiterated in respect of incoming calls by non-privileged persons. See SCSL, Detention Operational Order No. 3:1, issued on 18 July 2008 by Ray Cardinal Chief of Detention. Document on file with the author.
567.
Ibid.
568.
SCSL, Detention Operational Order No. 10:3, issued on 20 October 2003 by Barry Wallace, Chief of Detention. Document on file with the author.
569.
SCSL, interviews conducted by the author with SCSL detainees, Freetown–Sierra Leone, October 2009.
570.
SCSL, Detention Operational Order No. 3:1, issued on 18 July 2008 by Ray Cardinal Chief of Detention. Document on file with the author.
571.
Ibid.
572.
SCSL, Transcripts, Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-2004-14-T, T. Ch. I, 2 May 2006, 10:11 A.M., Status Conference, p. 42, lines 11–18.
573.
Id., p. 43, lines 6–14.
574.
Rule 8(B) of the SCSL Rules of Detention.
575.
See, also, Rule 10(B) of the STL Rules of Detention, which provides that ‘[t]he Detainee is entitled to request that the representative of the Head of the Defence Office or the person designated by him contact the Detainee’s family, a legal representative or an appropriate diplomatic or consular representative’.
576.
Rule 41(A) of the SCSL Rules of Detention.
577.
SCSL, Detention Operational Order No. 8:1, issued on 12 October 2004 by Barry Wallace Chief of Detention. Document on file with the author.
578.
SCSL, Detention Operational Order No. 3:1, issued on 18 July 2008 by Ray Cardinal Chief of Detention. Document on file with the author.
579.
Ibid.
580.
SCSL, interviews conducted by the author with SCSL detainees, Freetown—Sierra Leone, October 2009.
581.
SCSL, Transcripts, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, T. Ch. I, 23 July 2004, 3:03 P.M., Continued Trial, p. 8, line 31.
582.
SCSL, Detention Operational Order No. 3:1, issued on 18 July 2008 by Ray Cardinal Chief of Detention. Document on file with the author. It provides that ‘[i]n consideration of local custom and traditions, a guardian is the caregiver of the children who may be under the age of eighteen years’.
583.
SCSL, Detention Operational Order No. 12:3, issued on 10 August 2003 by Terry Jackson, Chief of Detention. Document on file with the author.
584.
SCSL, Detention Operational Order No. 3:1, issued on 18 July 2008 by Ray Cardinal Chief of Detention. Document on file with the author.
585.
SCSL, Decision on Joint Defence Motion for General Orders pursuant to Rule 54, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, T. Ch. II, 28 July 2005, para 25.
586.
SCSL, Detention Operational Order No. 3:3, issued on 5 January 2009 by Ray Cardinal, Chief of Detention. Document on file with the author.
587.
Ibid.
588.
Ibid.
589.
SCSL, Decision on Joint Defence Motion for General Orders pursuant to Rule 54, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, T. Ch. II, 28 July 2005, para 23.
590.
Vincent 2007, p. 72.
591.
SCSL, Detention Operational order No. 3:4, issued on 20 February 2006 by Barry Wallace, Chief of Detention. Document on file with the author. SCSL, Detention Operational Order No. 3:3, issued on 5 January 2009 by Ray Cardinal, Chief of Detention. Document on file with the author.
592.
SCSL, Detention Operational order No. 3:4, issued on 20 February 2006 by Barry Wallace, Chief of Detention. Document on file with the author.
593.
Rule 41(C) of the SCSL Rules of Detention.
594.
Ibid.
595.
Rule 41(D) of the SCSL Rules of Detention.
596.
SCSL, Detention Operational Order No. 1:2, issued on 11 May 2006 by Ray Cardinal, Chief of Detention. Document on file with the author.
597.
Ibid.
598.
SCSL, Transcripts, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, T. Ch. I, 23 July 2004, 3:03 P.M., Continued Trial, p. 9, lines 2–14.
599.
Id., p. 9, lines 16–19.
600.
Id., p. 9, lines 22–23.
601.
Id., p. 9, line 23, to p. 10, line 2.
602.
Id., p. 10, lines 8–10.
603.
Id., p. 10, lines 18–21.
604.
Rule 41 (E) of the SCSL Rules of Detention; SCSL, Decision on Joint Defence Motion for General Orders pursuant to Rule 54, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, T. Ch. II, 28 July 2005, para 24.
605.
SCSL, Detention Operational order No. 3:4, issued on 20 February 2006 by Barry Wallace, Chief of Detention. Document on file with the author.
606.
SCSL, Detention Operational Order No. 1:2, issued on 11 May 2006 by Ray Cardinal, Chief of Detention. Document on file with the author.
607.
SCSL, interviews conducted by the author with SCSL detainees, Freetown—Sierra Leone, October 2009.
608.
Rule 43(B) provides that ‘[d]etainees who are nationals of States without diplomatic or consular representation in the Host Country and refugees and stateless persons shall be allowed to communicate with the diplomatic representative of the State which takes charge or their interests or the national or international authority whose task is to serve the interest of such persons’.
609.
SCSL, Detention Operational Order No. 3:7, issued on 12 October 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
610.
Rule 41(B) of the SCSL Rules of Detention.
611.
SCSL, Detention Operational order No. 3:8, issued on 20 February 2006 by Barry Wallace, Chief of Detention. Document on file with the author.
612.
SCSL, Detention Operational order No. 3:4, issued on 20 February 2006 by Barry Wallace, Chief of Detention. Document on file with the author.
613.
SCSL, Detention Operational order No. 3:8, issued on 20 February 2006 by Barry Wallace, Chief of Detention. Document on file with the author.
614.
Ibid.
615.
Ibid.
616.
Ibid.
617.
Ibid.
618.
SCSL, Detention Operational Order No. 3:9, issued on 20 February 2006 by Barry Wallace, Chief of Detention. Document on file with the author.
619.
SCSL, Detention Operational Order No. 3:7, issued on 12 October 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
620.
SCSL, Press Release, Press and Public Affairs Office, 11 August 2003.
621.
See, e.g., SCSL, Transcripts, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-2004-16-T, T. Ch. II, 28 April 2005, 9:22 A.M., Open Session, p. 20, lines 2–4; SCSL, Decision on Joint Defence Motion for General Orders pursuant to Rule 54, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, T. Ch. II, 28 July 2005, para 22.
622.
SCSL, interviews conducted by the author with SCSL detainees, Freetown—Sierra Leone, October 2009.
623.
SCSL, Transcripts, Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-2004-14-T, T. Ch. I, 2 May 2006, 10:11 A.M., Status Conference, p. 42, lines 4–7.
624.
Id., p. 43, lines 1–15.
625.
SCSL, Transcripts, Prosecutor v. Taylor, Case No. SCSL-2003-01-PT, T. Ch. II, 3 April 2006, Initial Appearance, 3:00 p.m., p. 18.
626.
SCSL, Transcripts, Prosecutor v. Taylor, Case No. SCSL-2003-01-PT, T. Ch. II, 21 June 2006, Initial Appearance, 2:18 P.M., p. 7.
627.
Id., p. 8, 11.
628.
SCSL, Transcripts, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-2004-15-T, T. Ch. I, 20 June 2007, 9:52 A.M., p. 12, lines 1–6, p. 46, lines 1–4; SCSL, interviews conducted by the author with SCSL detainees, Freetown—Sierra Leone, October 2009.
629.
SCSL, Decision on the Defence Motion for the Temporary Provisional Release to Allow the Accused Santigie Borbor Kanu to Visit his Mother’s Grave, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-04-16-T, T. Ch. II, 18 October 2005, para 1.
630.
SCSL, Letter of 27 October 2009 from Binta Mansaray, Acting Registrar of the SCSL, to Wayne Jordash, Lead Counsel for Sesay, Ref/REG/573/2009/SG, Annex G to SCSL, Urgent Application to the President of the Court under Rule 19(C) for judicial Review of the Decision of the Acting Registrar in relation to the Enforcement of Sentence and to Temporarily Stay the Transfer of Detainees to a Designated Enforcement State, Prosecutor v. Sesay et al., Case No. SCSL-04-15-T, President, 30 October 2009. The Acting Registrar also wrote that the Court had endeavoured ‘to ensure that families will be able to effectively continue to visit SCSL prisoners [and had thereto] committed to continue funding such visits even after transfer’. She stated that ‘[p]risoners’ right to family visits will not be taken away after conviction, and the Government of Rwanda has also committed to facilitate the access of families to the SCSL prisoners’.
631.
SCSL, interviews conducted by the author with SCSL detainees, Freetown—Sierra Leone, October 2009.
632.
SCSL, interviews conducted by the author with SCSL detainees, Freetown—Sierra Leone, October 2009. In August 2011, 300.000 Leones amounted to approximately 70 U.S. Dollars or 50 Euros.
633.
SCSL, interviews conducted by the author with SCSL detention authorities, Freetown—Sierra Leone, October 2009.
634.
SCSL, Transcripts, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-2004-15-T, T. Ch., 10 January 2004, 10:10 A.M., Status Conference, p. 62, lines 25–27; SCSL, Transcripts, Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-2004-14-T, T. Ch. I, 8 February 2005, 9:40 A.M., Status Conference, p. 26, lines 9–22.
635.
SCSL, interview conducted by the author with SCSL detention authorities, Freetown—Sierra Leone, October 2009.
636.
See Regulation 185 of the ICC RoR.
637.
Rule 62 of the STL Rules of Detention stipulates that visitors are subject to identification and other security requirements.
638.
Article 1 of SCSL, Detention Facility Order No. 21:1, issued on 4 August 2009. Document on file with the author.
639.
Id., Article 2.
640.
Id., Article 3.
641.
Id., Article 6.
642.
Ibid.
643.
Ibid.
644.
Id., Article 11.
645.
Id., Article 4.
646.
Id., Article 5.
647.
Id., Article 6.
648.
SCSL, interviews conducted by the author with SCSL detainees, Freetown—Sierra Leone, October 2009.
649.
Article 9 of SCSL, Detention Facility Order No. 21:1, issued on 4 August 2009. Document on file with the author.
650.
Ibid.
651.
Id., Article 13.
652.
Ibid.
653.
See, in a similar vein, Rule 70(A) of the STL Rules of Detention, which provides, as far as relevant, that ‘[t]he Registrar, acting on his own initiative or at the request of the Pre-Trial Judge, a Chamber, the Prosecutor or the Head of the Defence Office may prohibit, regulate or set conditions for communications, including the active monitoring of telephone calls, and may prohibit, regulate or set conditions for visits between a Detainee and any other person (…)’.
654.
Rule 47(A) of the SCSL Rules of Detention.
655.
See, in a similar vein, Rule 70(B) of the STL Rules of Detention.
656.
Rule 47(C) of the SCSL Rules of Detention.
657.
Ibid.
658.
Rule 47(D) of the SCSL Rules of Detention. See, in a similar vein, Rule 70(D) of the STL Rules of Detention.
659.
Ibid.
660.
Rule 47(F) of the SCSL Rules of Detention.
661.
Rule 47(G) of the SCSL Rules of Detention.
662.
SCSL, Decision Prohibiting Communications and Visits, Prosecutor v. Hinga Norman, Case No. SCSL-2003-08-PT, Registry, 20 January 2004.
663.
SCSL, Decision on Request to Reverse the Order of the Acting Registrar under Rule 47(A) of the Rules of Detention of 6 June 2005, Prosecutor v. Hinga Norman, Case No. SCSL-04-14-RD47, President, 29 June 2005, para 1.
664.
Id., para 4.
665.
Ibid.
666.
Id., para 10.
667.
Id., para 12.
668.
Id., para 17. Emphasis added.
669.
Ibid.
670.
Id., para 19.
671.
Id., para 21.
672.
Regulation 168 of the RoR; Regulation 170(1) of the RoR; ICC, Public Redacted Version of ICC-01/05-01/08-95-Conf “Request for Clarification of the “First Decision on the Prosecutor’s request for redactions””, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, P.-T. Ch. III, 5 September 2008, para 20.
673.
Regulation 169(2) of the RoR.
674.
Regulation 169(1) of the RoR. See, also, Regulation 170(1) of the RoR.
675.
Regulation 169(1) of the RoR.
676.
Regulation 169(3) of the RoR.
677.
Regulation 169(4)(a) of the RoR.
678.
Regulation 169(5) of the RoR.
679.
Regulation 169(4)(b) of the RoR.
680.
Regulation 169(6) of the RoR.
681.
Ibid.
682.
Regulation 169(7) of the RoR.
683.
Regulation 169(8) of the RoR.
684.
Regulation 169(9) of the RoR.
685.
See, infra, p. 733.
686.
Regulation 172(1) of the RoR.
687.
Regulation 172(2) of the RoR.
688.
Pursuant to Regulation 172(4), a detained person may file a complaint in accordance with the formal complaints procedure if he objects to restrictions imposed by the Chief Custody Officer under the same Regulation.
689.
Regulation 186(2)(h) of the RoR.
690.
Regulation 99(1)(i) of the RoC.
691.
Regulations 173(3) and (4) of the RoR.
692.
ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of Telephone contacts, Prosecutor v. Katanga and Ngudjolo, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, para 40.
693.
Regulation 173(1) of the RoR.
694.
ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of Telephone contacts, Prosecutor v. Katanga and Ngudjolo, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, para 19.
695.
Id., para 20.
696.
Id., para 26.
697.
Id., para 33.
698.
Id., para 35. The Registrar further argued that ‘the fifteen-day waiting period is reasonable, being identical to the period reserved for the analysis of information provided in application forms for visits’; see, id., para 36.
699.
According to the Presidency, this test is ‘in line with that previously applied by the Presidency’ and ‘noting the terms of article 21(3) of the Rome Statute, is consistent with that applied by the European Court of Human Rights in considering the legitimacy of interference by detaining authorities with the right of a detained person to respect for his private and family life under article 8 of the European Convention’; id., para 45.
700.
Id., para 56.
701.
Id., para 60.
702.
Id., para 63.
703.
This indeed appears to be the actual practice at the Court’s Detention Centre. See ICC, Public Redacted Version of ICC-01/05-01/08-95-Conf “Request for Clarification of the “First Decision on the Prosecutor’s request for redactions””, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, P.-T. Ch. III, 5 September 2008, para 5.
704.
Regulation 174(1) of the RoR.
705.
These are the grounds for active monitoring, which are listed further below.
706.
ICC, Public Redacted Version of ICC-01/05-01/08-95-Conf “Request for Clarification of the “First Decision on the Prosecutor’s request for redactions””, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, P.-T. Ch. III, 5 September 2008, para 6. Emphasis omitted.
707.
ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of Telephone contacts, Prosecutor v. Katanga and Ngudjolo, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, para 53.
708.
Regulation 175(2) of the RoR.
709.
ICC, Public Redacted Version of ICC-01/05-01/08-95-Conf “Request for Clarification of the “First Decision on the Prosecutor’s request for redactions””, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, P.-T. Ch. III, 5 September 2008, para 7.
710.
Regulation 175(1) of the RoR.
711.
Ibid.
712.
Ibid.
713.
Regulation 175(3) of the RoR.
714.
Regulation 175(5) of the RoR.
715.
Regulation 175(6) of the RoR.
716.
Regulation 175(7) of the RoR.
717.
Regulation 175(8) of the RoR.
718.
Regulation 175(9) of the RoR.
719.
ICC, Public Redacted Version of ICC-01/05-01/08-95-Conf “Request for Clarification of the “First Decision on the Prosecutor’s request for redactions””, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, P.-T. Ch. III, 5 September 2008, para 14.
720.
Id., para 14, 15.
721.
Id., para 26. Emphases omitted.
722.
Id., para 17.
723.
Id., para 18.
724.
Regulation 176(1) and (2) of the RoR.
725.
Regulation 176(4) of the RoR provides that a detained person who objects to such restrictions imposed by the Chief Custody Officer may file a complaint in accordance with the formal complaints procedure.
726.
Regulation 176(3) of the RoR.
727.
Regulation 110(2) of the RoC.
728.
Regulation 177 of the RoR.
729.
FAQ about Detention put to Terry Jackson, Chief Custody Officer of the ICC, in: ICC Newsletter #07 April 2006, pp. 3–4, p. 4; available at http://www.icc-cpi.int/NR/rdonlyres/36551B4E−9CED-49B6-BA14-9BA4F05F0043/278471/ICCNL7200604_En.pdf (last visited by the author on 29 March 2011).
730.
CPI, Troisième rapport du Greffe sur l'état d'avancement des demandes de visas pour les familles des personnes détenues dans le cadre des visites familiales, le Procureur c. Katanga & Ngudjolo, Affaire No. ICC-01/04-01/07, La Chambre Préliminaire I, le 3 novembre 2008.
731.
Ibid.
732.
Privileged visitors include counsel, diplomatic or consular representatives, representatives of the independent inspecting authority and Officers of the Court. See Regulation 179(1) of the RoR.
733.
Ibid.
734.
Sub-Regulation 179(3) of the RoR provides that ‘[w]here the application is submitted in a language other than a working language of the Court, the Registry shall either contact the person, requesting him or her to obtain a translation in a working language of the Court, or request the interpretation and translation service to translate such application’.
735.
Regulation 179(2) of the RoR; ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of Telephone contacts, Prosecutor v. Katanga and Ngudjolo, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, para 59.
736.
Regulation 180(1) of the RoR.
737.
Regulation 180(2) of the RoR.
738.
Regulation 180(3) of the RoR.
739.
Regulation 180(4) of the RoR.
740.
ICC, Public Redacted Version of ICC‐01/05‐01/08‐231‐Conf “Decision of the Registrar on the monitoring of the non‐privileged communications and visits of Mr. Jean‐Pierre Bemba Gombo“, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, P.-T. Ch. III, 10 November 2008.
741.
Ibid.
742.
Ibid.
743.
Ibid.
744.
ICC, Decision concerning the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Presidency, 21 November 2008.
745.
ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Memba Gombo, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 17.
746.
Ibid.
747.
Id., para 23.
748.
Id., para 24.
749.
Id., para 28.
750.
Ibid.
751.
Id., para 29-30.
752.
Id., para 30.
753.
Id., para 34, 45.
754.
Id., para 34.
755.
Id., para 39.
756.
Ibid.
757.
Ibid.
758.
Id., para 40.
759.
Id., para 42.
760.
Article 2(2) of the Convention on the Rights of the Child provides that ‘States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members’.
761.
ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Memba Gombo, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 46.
762.
Id., para 53, 57.
763.
ICC, Decision concerning the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Presidency, 21 November 2008.
764.
ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Memba Gombo, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 50.
765.
ICC, Decision concerning the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08, Presidency, 21 November 2008.
766.
ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Memba Gombo, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 50, 52.
767.
Id., para 55. Footnotes omitted.
768.
Ibid. Footnotes omitted.
769.
Id., para 56.
770.
Regulation 98(1) of the RoC.
771.
Regulation 98(2) of the RoC. Since this provision speaks about communications being conducted ‘within the sight but not the hearing’, it appears that the right to privileged communications applies only to conversations during visits and not to telephone conversations.
772.
Regulation 182(1) of the RoR.
773.
Regulation 182(3) of the RoR.
774.
Regulation 182(4) of the RoR.
775.
Regulation 167(1) of the RoR.
776.
Regulation 167(2) of the RoR.
777.
Regulation 167(3) of the RoR.
778.
Regulation 167(4) of the RoR.
779.
Regulation 183(1) of the RoR.
780.
Ibid.
781.
See, also, Article 4(c) of the Agreement between the International Criminal Court and the International Committee of the Red Cross on Visits to Persons Deprived of Liberty Pursuant to the Jurisdiction of the International Criminal Court, ICC-PRES/02-01-06, signed on 29 March 2006 and 13 April 2006, entry into force on 13 April 2006.
782.
Regulation 183(1) of the RoR.
783.
Regulation 183(2) of the RoR.
784.
Regulation 183(3) of the RoR.
785.
Ibid.
786.
ICC, Public Redacted Version of ICC-01/05-01/08-95-Conf “Request for Clarification of the ‘First Decision on the Prosecutor’s request for redactions’”, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, P.-T. Ch. III, 5 September 2008, para 8.
787.
Privileged persons include counsel and counsel’s legal assistants, consular or diplomatic representatives, representatives of the ICRC and officers of the Court.
788.
Regulation 184(1) of the RoR. ICC, Public Redacted Version of ICC-01/05-01/08-95-Conf “Request for Clarification of the “First Decision on the Prosecutor’s request for redactions””, Prosecutor v. Bemba, Case No. ICC-01/05-01/08, P.-T. Ch. III, 5 September 2008, para 8.
789.
Regulation 184(2) of the RoR.
790.
Sub-Regulations 184(2) and (3) of the RoR.
791.
Regulation 184(4) of the RoR.
792.
ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Memba Gombo, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 57.
793.
Regulation 184(5) of the RoR.
794.
Regulation 184(6) of the RoR.
795.
Regulation 184(8) of the RoR.
796.
Regulation 184(7) of the RoR.
797.
Regulation 184(9) of the RoR.
798.
Regulation 184(10) of the RoR.
799.
Regulation 184(11) of the RoR.
800.
Regulation 181(5) of the RoR.
801.
Ibid.
802.
Regulation 183(1) of the RoR.
803.
Regulation 185(2) of the RoR.
804.
ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Memba Gombo, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 57.
805.
Ibid.
806.
See, e.g., CPI, Deuxième rapport du Greffe sur l'état d'avancement des demandes de passeports pour les familles des personnes détenues, le Procureur c. Katanga & Ngudjolo, Affaire No. ICC-01/04-01/07, La Chambre Préliminaire I, le 25 septembre 2008; CPI, Troisième rapport du Greffe sur l'état d'avancement des demandes de visas pour les familles des personnes détenues dans le cadre des visites familiales, le Procureur c. Katanga & Ngudjolo, Affaire No. ICC-01/04-01/07, La Chambre Préliminaire I, le 3 novembre 2008.
807.
ICC Registry, First Seminar of the Registry on Detention Matters, “Family Visits”, Proposed Report for Consultation, 8–9 July 2008, The Hague—Netherlands, p. 3. Document on file with the author.
808.
CPI, Deuxième rapport du Greffe sur l'état d'avancement des demandes de passeports pour les familles des personnes détenues, le Procureur c. Katanga & Ngudjolo, Affaire No. ICC-01/04-01/07, La Chambre Préliminaire I, le 25 septembre 2008; CPI, Troisième rapport du Greffe sur l'état d'avancement des demandes de visas pour les familles des personnes détenues dans le cadre des visites familiales, le Procureur c. Katanga & Ngudjolo, Affaire No. ICC-01/04-01/07, La Chambre Préliminaire I, le 3 novembre 2008, para 2; ICC, Transcripts, Prosecutor v. Katanga & Ngudjolo, Case No. ICC-01/04-01/07, P.-T. Ch. I, 14 May 2008, p. 4, lines 13–16; ICC, Order to the Registrar to Submit a Report Concerning the Defence Request of 15 October 2008, Prosecutor v. Katanga & Ngudjolo Chui, Case No. ICC-01/04-01/07, P.-T. Ch. I, 21 October 2008.
809.
Headquarters Agreement between the International Criminal Court and the host State, 7 June 2007.
810.
ICC, Transcripts, Prosecutor v. Katanga & Ngudjolo, Case No. ICC-01/04-01/07, P.-T. Ch. I, 22 April 2008, p. 3, lines 11–20.
811.
Id., p. 4, lines 19–21.
812.
Id., p. 6, lines 1–7.
813.
ICC, Transcripts, Prosecutor v. Katanga & Ngudjolo, Case No. ICC-01/04-01/07, P.-T. Ch. I, 14 May 2008, p. 4, lines 3–12.
814.
ICC Registry, First Seminar of the Registry on Detention Matters, “Family Visits”, Proposed Report for Consultation, 8–9 July 2008, The Hague—Netherlands, p. 2 (hereafter in this subparagraph referred to as the ‘Proposed Report’). Document on file with the author.
815.
Proposed Report, p. 2, 3; ICC, Report of the Court on family visits to indigent detained persons, ICC-ASP/7/24, 5 November 2008, para 4.
816.
ICC, Bureau of the Assembly of States Parties, The Hague Working Group, Sixth Meeting, held on 18 June 2008, ‘Agenda and decisions’, 26 June 2008 1745b.
817.
Ibid. This remark was, of course, a purely theoretical one, since no person had at the time been convicted by the Court.
818.
Ibid.
819.
ICC, Proposed Report, p. 3; ICC, Report of the Court on family visits to indigent detained persons, ICC-ASP/7/24, 5 November 2008, para 4.
820.
ICC, Proposed Report, p. 3. In 2006 and 2007 the costs amounted to 16.000 and 29.300 euros, respectively. For 2008, the budget approved was 31700 euros. For 2009, the proposed budget amounted to 84.600 euros ‘for family visits from no more than 7 persons’; id., p. 5.
821.
ICC, Proposed Report, p. 2.
822.
Paragraph 14 of Resolution ICC-ASP/6/Res.2, adopted by the Assembly of States Parties at the 7th plenary meeting, on 14 December 2007, by consensus.
823.
ICC, Bureau of the Assembly of States Parties, The Hague Working Group, Sixth Meeting, held on 18 June 2008, ‘Agenda and decisions’, 26 June 2008 1745b.
824.
Ibid.
825.
See, also, Hirondelle News Agency, Arusha, 21 July 2008, International Courts Brainstorm Conjugal Rights for Prisoners, available at: http://www.hirondellenews.com/content/view/6306/517/ (last visited by the author on 30 March 2011).
826.
ICC, Bureau of the Assembly of States Parties, The Hague Working Group, Sixth Meeting, held on 18 June 2008, ‘Agenda and decisions’, 26 June 2008 1745b.
827.
Ibid. The ‘legal associations’ and ‘experts’ included the Office of the United Nations High Commissioner for Human Rights, the United Nations Economic and Social Council, the United Nations Children’s Fund, the Council of Europe, the African Council of Women, the ICRC, Amnesty International and the International Bar Association (id., footnote 1).
828.
ICC, Proposed Report, p. 3, 4.
829.
Id., p. 4. The participants also recommended funding for a ‘dignity allowance for the family’s daily subsistence’ for the duration of their stay in the Host State. The recommended amounts were 24 euros per adult and 12 euros per child. Idem, p. 16, para 33.
830.
Id., p. 4. As to the necessity for such additional assistance, it was later added that ‘[t]his assistance is especially essential for a very first visit since the differences relating to language, culture and other practical questions between the country of origin of the family and The Netherlands are a hindrance to their temporary stay in The Hague’; ICC, Report of the Court on family visits to indigent detained persons, ICC-ASP/7/24, 5 November 2008, para 7.
831.
ICC, Proposed Report, p. 5, para 5.
832.
Id., p. 6, para 6. See, also, Hirondelle News Agency, Arusha, 21 July 2008, International Courts Brainstorm Conjugal Rights for Prisoners, available at http://www.hirondellenews.com/content/view/6306/517/ (last visited by the author on 30 March 2011).
833.
ICC, Proposed Report, footnote 4.
834.
Id., p. 6, para 6. Footnotes omitted. As to the latter argument, it was recognised that ‘difficulties currently experienced at the Detention Centre—incidents and refusals to appear at hearings—are limited to those detained persons who have not received a visit from members of their immediate families’; id., p. 13, para 26.
835.
Id., p. 6, para 6.
836.
Id., p. 6, para 7. Also the issue of polygamous marriages was discussed. Observed, in this respect, was the Court’s ‘reluctance to become involved in what might be regarded as human trafficking’; id., p. 7, para 7.
837.
Id., pp. 6–7, para 7.
838.
Id., p. 15, para 33.
839.
Id., p. 7, para 7. With respect to such situations, the Registry later suggested using the concept of ‘close relatives’. It stated that the choice as to which persons would fall within this category ought to be made by the detained person himself, whilst ensuring that ‘such a possibility does not turn into what could be regarded as human trafficking’; ICC, Assembly of States Parties, Report of the Court on family visits to indigent detained persons, ICC-ASP/7/24, 5 November 2008, para 18.
840.
ICC, Proposed Report, p. 7, para 8.
841.
Ibid.
842.
Ibid.
843.
Id., pp. 7–8, para 9.
844.
Id., p. 8, para 10.
845.
Id., p. 9, para 15.
846.
Id., p. 8, para 11.
847.
Id., p. 10, para 18.
848.
Id., p. 8, para 12.
849.
Ibid.
850.
Id., p. 8, para 11.
851.
Id., p. 10, para 17.
852.
Id., p. 10, para 17.
853.
Paragraph 10 of the Preamble to and Article 1 of the Rome Statute provide that the ICC is complementary to national criminal jurisdictions. The jurisdiction of the Court can be triggered under Article 17 when the national criminal system is either unable or unwilling to deal with a case. This is different from the primacy concept applicable to the jurisdiction regimes of the ad hoc tribunals, according to which it is not required to demonstrate any failure or inability on the side of the domestic authorities to proceed with the case. See, in more detail, Schabas 2007, pp. 174–175. Complementarity can also be interpreted as having a positive connotation, in the sense that the ICC and domestic jurisdictions cooperate with each other in putting an end to impunity. This is probably how complementarity must be understood as referred to in the Proposed Report. I am indebted to Professor dr. Harmen van der Wilt for drawing my attention to this point.
854.
ICC, Proposed Report, p. 9, para 13.
855.
Id., p. 11, para 21.
856.
Id., p. 11, para 22. It was later added that ‘the families of some detained persons have made the decision to live closer to their detained relative, by moving to Freetown’ and that ‘[i]t also appears that those sentenced would benefit from such funding’; ICC, Assembly of States Parties, Report of the Court on family visits to indigent detained persons, ICC-ASP/7/24, 5 November 2008, para 24.
857.
Hirondelle News Agency, Arusha, 21 July 2008, International Courts Brainstorm Conjugal Rights for Prisoners, available at http://www.hirondellenews.com/content/view/6306/517/ (last visited by the author on 30 March 2011); ICC, Assembly of States Parties, Report of the Court on family visits to indigent detained persons, ICC-ASP/7/24, 5 November 2008, paras 25–26. It was added in para 27 of the Report of 5 November 2008 that ‘both the ICTY and the ICTR did however receive some support from the ICRC at the very beginning to fund family visits to detained persons; yet it was never undertaken as a general, sustainable practice’. According to Aeschlimann, the ICRC more generally ‘tries to trace detainees’ families and may decide to facilitate visits by organizing the logistics for them, as it does for the families of Palestinian detainees imprisoned in Israel and the occupied territories. This service provided by the ICRC is often the only link with the outside world’; see Aeschlimann 2005, p. 116. On 12 May 2011, the Washington Post reported that the ‘Pentagon was considering allowing the families of detainees held at Guantanamo Bay to visit them’ stating that ‘[t]he International Committee of the Red Cross (ICRC), which monitors conditions at the military prison in Cuba and facilitates videoconferences between detainees and their families, has been in serious discussions with the Pentagon about a visitation program’; see http://www.washingtonpost.com/national/guantanamo-bay-detainees-family-members-may-be-allowed-to-visit/2011/05/11/AFGAMtsG_story.html (last visited by the author on 11 August 2011). Article 10 of the Agreement between the Special Tribunal for Lebanon and the International Committee of the Red Cross on Visits to persons Deprived of Liberty pursuant to the Jurisdiction of the Special Tribunal for Lebanon provides that ‘[i]n the event of loss of contact between the Detainees and their families the ICRC may offer the exchange of Red Cross messages in order to re-establish and maintain family communications. Their content shall be checked by the Chief of Detention’.
858.
Hirondelle News Agency, Arusha, 21 July 2008, International Courts Brainstorm Conjugal Rights for Prisoners, available at http://www.hirondellenews.com/content/view/6306/517/ (last visited by the author on 30 March 2011).
859.
ICC, Proposed Report, p. 11, para 22.
860.
Id., p. 12, para 22.
861.
Ibid. See, also, Hirondelle News Agency, Arusha, 21 July 2008, International Courts Brainstorm Conjugal Rights for Prisoners, available at: http://www.hirondellenews.com/content/view/6306/517/ (last visited by the author on 30 March 2011).
862.
ICC, Proposed Report, p. 12, para 22.
863.
ICC, Assembly of States Parties, Report of the Court on family visits to indigent detained persons, ICC-ASP/7/24, 5 November 2008, para 30.
864.
Ibid.
865.
ICC, Proposed Report, p. 11, para 20.
866.
Id., p. 10, para 16.
867.
Id., p. 15, para 32.
868.
Id., p. 13, para 27.
869.
In respect of the determination of an accused’s financial means, Regulation 84(2) of the RoC provides that ‘[t]he means of the applicant shall include means of all kinds in respect of which the applicant has direct or indirect enjoyment or power freely to dispose, including, but not limited to, direct income, bank accounts, real or personal property, pensions, stocks, bonds or other assets held, but excluding any family or social benefits to which he or she may be entitled. In assessing such means, account shall also be taken of any transfers of property by the applicant which the Registrar considers relevant, and of the apparent lifestyle of the applicant. The Registrar shall allow for expenses claimed by the applicant provided they are reasonable and necessary’. Under the scheme of Regulation 84, the financial resources of the accused’s family members are not taken into account. In the Proposed Report, the Registrar suggested reviewing those modalities for determining detainees’ and their families’ means for travelling to The Hague. The following criteria were suggested to be included in such a new scheme: ‘the situation of both the detained person and his/her family; the detained person is deemed indigent and receives legal assistance paid by the Court; the income of the family is determined on the basis of the lowest wage of a UN staff member in the country where the family lives; the costs of 3 visits per year by the members of the nuclear family (2 persons per visit); in principle, there will be a visit every 4 months; the cost for each visit would be divided by 4 in order to determine the monthly family income necessary to fund one visit; if the available monthly family income necessary to fund one visit is equal to the lowest wage of a UN staff member in the country where the family lives, the family would not be deemed indigent; if the available monthly family income is below the lowest wage of a UN staff member in the country where the family lives, the family would be deemed partially indigent and will pay part of the costs related to the visit’; id., p. 14, para 29.
870.
Id., pp. 13–14, para 29.
871.
Id., p. 15, para 31.
872.
Id., p. 15, para 33.
873.
Id., p. 16, para 33.
874.
Ibid.
875.
Id., p. 17.
876.
CPI, Deuxième rapport du Greffe sur l'état d'avancement des demandes de passeports pour les familles des personnes détenues, le Procureur c. Katanga & Ngudjolo, Affaire No. ICC-01/04-01/07, La Chambre Préliminaire I, le 25 septembre 2008; CPI, Troisième rapport du Greffe sur l'état d'avancement des demandes de visas pour les familles des personnes détenues dans le cadre des visites familiales, le Procureur c. Katanga & Ngudjolo, Affaire No. ICC-01/04-01/07, La Chambre Préliminaire I, le 3 novembre 2008. In November, the Registry warned that certain demands made by the defence for financing visits could pose a threat to the continued existence of the system of assistance that was in place at the time (‘sur le délicat sujet du financement des visites familiales, le Greffier a toujours pris soin de souligner l'inexistence d'une obligation positive à sa charge et qu'il était utile de rappeler à la défense que le greffe ne saurait faire l'objet de pressions de quelque nature que ce soit sur ce point; qu'ainsi l'attitude de la defense tout au long des démarches du greffe pouvait constituer une menace pour le financement d'une telle visite comme pour celle des autres personnes détenues’; CPI, Supplément d'informations et précisions du Greffier sur le troisième rapport du Greffe sur l'état d'avancement des demandes de visas pour les familles des personnes détenues dans le cadre des visites familiales, le Procureur c. Germain Katanga & Mathieyu Ngudjolo, Affaire No. ICC-01/04-01/07, La Chambre De Première Instance II, le 25 novembre 2008.
877.
CPI, Deuxième rapport du Greffe sur l'état d'avancement des demandes de passeports pour les familles des personnes détenues, le Procureur c. Katanga & Ngudjolo, Affaire No. ICC-01/04-01/07, La Chambre Préliminaire I, le 25 septembre 2008.
878.
ICC, Assembly of States Parties, Report of the Court on family visits to indigent detained persons, ICC-ASP/7/24, 5 November 2008 (hereafter referred to in this paragraph as ‘Report of the Court’).
879.
Id., para 12.
880.
Id., para 14. Footnotes omitted.
881.
Id., para 16.
882.
Id., p. 19.
883.
Ibid.
884.
Id., p. 22.
885.
Id., p. 31.
886.
Id., p. 32.
887.
Id., para 40.
888.
Id., para 41. Footnote omitted.
889.
Id., paras 42, 45.
890.
Id., para 58.b.
891.
ICC, Assembly of States Parties, Report of the Bureau on family visits for detainees, ICC-ASP/7/30, 6 November 2008 (hereafter referred to as ‘Report of the Bureau’).
892.
Id., para 10.b.
893.
Id., para 10.e. The Report referred to Spain and the United kingdom.
894.
Id., para 10.f.
895.
Id., para 10.j.
896.
ICC, Assembly of States Parties, Report of the Court on the financial aspects of enforcing the Court’s obligation to fund family visits to indigent detained persons, ICC-ASP/8/9, 6 May 2009, para 3.
897.
CPI, Supplément d'informations et précisions du Greffier sur le troisième rapport du Greffe sur l'état d'avancement des demandes de visas pour les familles des personnes détenues dans le cadre des visites familiales, le Procureur c. Germain Katanga & Mathieyu Ngudjolo, Affaire No. ICC-01/04-01/07, La Chambre De Première Instance II, le 25 novembre 2008.
898.
ICC, Decision on “Mr Mathieu Ngudjolo’s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008”, Prosecutor v. Ngudjolo, Case No. ICC-RoR-217-02/08, Presidency, 10 March 2009, para 23.
899.
Id., para 2.
900.
Id., para 3.
901.
Id., para 13.
902.
Id., para 14.
903.
Id., para 15.
904.
Ibid.
905.
Id., paras 7-8.
906.
Id., para 9.
907.
Id., para 10, 20.
908.
Id., para 23.
909.
Id., para 25.
910.
Id., para 26.
911.
Id., para 27. The Presidency based its finding on the SMR, the U.N. Body of Principles, the EPR, observations of the United Nations Committee Against Torture, the Standards formulated by the CPT, case-law of the ECtHR, the ICTY and the ICTR, the Rules of Detention of the ICTY, ICTR, SCSL and on the ICC’s legal documents.
912.
Id., para 31.
913.
Id., paras 32–34.
914.
Id., para 38.
915.
Ibid.
916.
Id., para 35.
917.
Ibid.
918.
Ibid.
919.
Id., para 36.
920.
Id., paras 39–40.
921.
Id., para 37.
922.
Id., para 42.
923.
Id., para 44.
924.
Id., para 48.
925.
Id., para 47.
926.
Id., para 51.
927.
Id., para 52.
928.
Id., para 54.
929.
Id., para 55.
930.
ICC, Assembly of States Parties, Report of the Court on the financial aspects of enforcing the Court’s obligation to fund family visits to indigent detained persons, ICC-ASP/8/9, 6 May 2009. See, also, ICC, Assembly of States Parties, Report of the Committee on Budget and Finance on the work of its twelfth session, ICC-ASP/8/5, 13 May 2009.
931.
The annual costs went up from 40.500 Euros to 81.500 Euros.
932.
ICC, Assembly of States Parties, Report of the Court on the financial aspects of enforcing the Court’s obligation to fund family visits to indigent detained persons, ICC-ASP/8/9, 6 May 2009, paras 12–16.
933.
ICC, Assembly of States Parties, Report of the Bureau on family visits for detainees, ICC-ASP/8/42, 29 October 2009 (hereafter in this paragraph referred to as ‘Report of the Bureau 2009’).
934.
Id., para 11. The Presidency has itself clarified its judicial/legal functions by stating that ‘the Presidency is an appellate court conducting judicial review of the Registrar’s decisions on a range of issues, including the conditions of detention and the rights of detained persons. The judgments of the Presidency are final, non-appealable judgments rendered by three independent judges elected by their peers to serve in the Presidency’; ibid.
935.
Id., para 11, 26.
936.
Id., para 27.
937.
Id., para 15.
938.
Ibid.
939.
Id., para 16, 18.
940.
Id., para 26.
941.
Id., para 32.a.ii.
942.
Id., para 32.d and 32.e.
943.
Id., para 33.
944.
Id., Annex II, para 2.
945.
Van Zyl Smit and Snacken 2009, p. 235.
946.
Id., p. 237.
947.
Report of the Bureau 2009, Annex II, para 3.
948.
Id., para 6.
949.
Ibid.
950.
Id., para 9.
951.
ICC, Resolution ICC-ASP/8/Res.4, Family visits for indigent detainees, adopted at the 8th plenary meeting, on 26 November 2009, by consensus (hereafter in this paragraph referred to as ‘Resolution’). See, further, ICC, Assembly of States Parties to the Rome Statute of the International Criminal Court, Eighth session, The Hague, 18–26 November 2009, Official Records Volume I, ICC-ASP/8/20, para 51.
952.
See the Preamble to the Resolution.
953.
See Paragraph 5 of the Resolution. See, also, ICC, Press Release of 27 November 2009 ‘Assembly of States Parties concludes its eighth session’, ICC-ASP-20091126-PR481.
954.
See Paragraph 7 of the Resolution.
955.
Vincent 2007, p. 72.
956.
Regulations to Govern the Supervision of Visits to and Communications with Detainees, established by the Registrar (issued by the Registrar and the Commanding Officer) in May 1996. (Hereafter: Regulations’.) The Regulations are on file with the author.
957.
ICTR, Urgent Motion by Ntabakuze’s Defence Seeking an order for the Registrar to Lift Some of the Measures Restricting Access by Defence Investigators to the Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-99-41-I, T. Ch. III, 30 April 2002, para 21 sub (b).
958.
ICTY, Decision on Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 21 April 2011, para 30.
959.
Rule 69(A) of the STL Rules of Detention.
960.
Rule 69(C) of the STL Rules of Detention.
961.
Rule 70 stipulates that the Registrar at his own initiative or acting upon the request of a Pre-Trial Judge, Chamber, Head of the Defence Office or of the Prosecutor, may ‘prohibit, regulate or set conditions’ for a detainee’s communications with any other person.
962.
See, in respect of active monitoring, Regulation 175(3) of the RoR.
963.
ICC, Reasons for the decision on the Applications for judicial review of Mr Jean-Pierre Bemba Gombo of 10 and 11 November 2008, Prosecutor v. Jean-Pierre Memba Gombo, Case No. ICC-01/05-01/08, Presidency, 5 December 2008, para 28. Emphasis added.
964.
See Regulation 169(1) of the RoR. See, also, Regulation 170(1) of the RoR.
965.
See, e.g., ECtHR, Ciorap v. Moldova, judgment of 19 June 2007, Application No. 12066/02, paras 117–118; ECtHR, Moiseyev v. Russia, judgment of 9 October 2008, Application No. 62936/00, para 255, 266; ECtHR, Ciapas v. Lithuania, judgment of 16 November 2006, Application No. 4902/02, para 25; ECtHR, Petrov v. Bulgaria, judgment of 22 May 2008, Application No. 15197/02, paras 44–45; ECtHR, Savenkovas v. Lithuania, judgment of 18 November 2008, Application No. 871/02, para 97; ECtHR, Onoufriou v. Cyprus, judgment of 7 January 2010, Application No. 24407/04, para 109, 112.
966.
ECtHR, Petrov v. Bulgaria, judgment of 22 May 2008, Application No. 15197/02, paras 44–45.
967.
CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 24.
968.
ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of Telephone contacts, Prosecutor v. Katanga and Ngudjolo, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, para 53.
969.
Rule 69(D) of the STL Rules of Detention.
970.
See, in a similar vein, Regulation 184(7) of the RoR, which provides that ‘[r]ecords of monitored visits shall be erased after completion of the proceedings’.
971.
See, however, Rule 47(D) of the SCSL Rules of Detention.
972.
Higgins 1994, p. 5.
973.
See, e.g., Mills and Codd 2007, p. 683.
974.
Ibid. See, also, Murray 2005, p. 445; Codd 2008, p. 52, 56.
975.
Mills and Codd 2007, p. 680.
976.
SCSL, interview conducted by the author with SCSL detention authorities, Freetown—Sierra Leone, October 2009.
977.
Van Kempen 2008, p. 21.
978.
ECtHR, Dickson v. the United Kingdom, judgment of 4 December 2007, Application No. 44362/04, para 70.
979.
Ibid.
980.
Id., para 78.
981.
Harris et al. 2009, p. 362.
982.
I-ACommHR, Annual Report of the Inter-American Commission on Human Rights 2007, OEA/Ser.L/V/II.130, Doc. 22, Rev. 1, 29 December 2007, para 308.
983.
Van Zyl Smit and Snacken 2009, p. 214.
984.
See, in a similar vein, Van Kempen 2008, p. 25; Murdoch 2006, p. 241.
985.
See Van Kempen 2008, p. 26.
986.
ICC, Proposed Report, footnote 4.
987.
Id., p. 6, para 6. Footnotes omitted. As to the latter argument, it was recognised that ‘difficulties currently experienced at the Detention Centre—incidents and refusals to appear at hearings—are limited to those detained persons who have not received a visit from members of their immediate families’; id., p. 13, para 26.
988.
ICC, Decision on “Mr Mathieu Ngudjolo’s Complaint Under Regulation 221(1) of the Regulations of the Registry Against the Registrar’s Decision of 18 November 2008”, Prosecutor v. Ngudjolo, Case No. ICC-RoR-217-02/08, Presidency, 10 March 2009, para 42.
989.
ECtHR, Selmani v. Switzerland, Admissibility Decision of 28 June 2001, Application No. 70258/01. See, in a similar vein, ECommHR, Hacisuleymanoglu v. Italy, Admissibility Decision of 20 October 1994, Application No. 23241/94. Emphasis added.
990.
ICC, Proposed Report, p. 8, para 10.
991.
Office of the United Nations High Commissioner for Human Rights 2005, p. 121.
992.
Susan Easton 2011, p. 161. See, also, Penal Reform International 2001, p. 108.
993.
Office of the United Nations High Commissioner for Human Rights 2005, pp. 121–122.
994.
ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.8.2.
995.
ICTY, Decision of the President on the Application for Pardon or Commutation of Sentence of Miroslav Tadić, Prosecutor v. Tadić, Case No. IT-95-9, President, 3 November 2004, para 6.
996.
CPT, Report to the Finnish Government on the visit to Finland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 20 May 1992, CPT/Inf(93)8, Strasbourg, 1 April 1993, para 135. See, also, De Lange 2008, p. 162.
997.
CPT, Report to the Finnish Government on the visit to Finland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 20 May 1992, CPT/Inf(93)8, Strasbourg, 1 April 1993, para 135.
998.
In June 2011, counsel for Mladić argued that Serbia has to pay for the travel costs of his client’s relatives in order for them to be able to visit him in The Hague. See the NRC newspaper’s webpage of 18 June 2011 at http://www.nrc.nl/nieuws/2011/06/18/servie-moet-kosten-verdediging-Mladić-vergoeden/ (last visited by the author on 8 September 2011).
999.
Admittedly, this subparagraph is a bit out-of-place in a paragraph which deals with contact of detainees with their relatives and friends.
1000.
Agreement between the Special Tribunal for Lebanon and the International Committee of the Red Cross on Visits to Persons Deprived of Liberty pursuant to the Jurisdiction of the Special Tribunal for Lebanon, signed in June 2009.
1001.
Rule 60(B) of the STL Rules of Detention.
1002.
Rule 69(A) of the STL Rules of Detention.
1003.
Regulation 169(1)(c) of the RoR.
1004.
Regulations 179(1) and 180(1) of the RoR.
1005.
Regulation 183(1) of the RoR; Regulation 184(2) of the RoR.
1006.
However, this was denied by UNDU’s Commanding Officer during an interview conducted for the purpose of this study. According to him, all communications of detainees with the ICRC are privileged; ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the ICTY UNDU, The Hague—Netherlands, 17 June 2011.
1007.
Among the States that have adopted some sort of conjugal visiting programmes, Wyatt mentions such culturally divergent countries as Sweden, Denmark, Spain, Brazil, Mexico, Kenya, the Philippines and Egypt; Wyatt 2005–2006, pp. 602–604.
1008.
Stern 2002, p. 134.
1009.
Spronken 2001, p. 335.
1010.
HRC, General Comment 13, Article 14, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994), 21st session, 1984; HRC, Dennis Douglas, Errol Gentles and Lorenzo Kerr v. Jamaica, Communication 352/1989, U.N. Doc. CCPR/C/49/D/352/1989, views of 19 October 1993, para 11.
1011.
Temminck Tuinstra 2009, p. 65.
1012.
Temminck Tuinstra 2006, p. 50.
1013.
Trechsel 2005, p. 278; Office of the United Nations High Commissioner for Human Rights 2005, p. 122; Penal Reform International 2001, p. 108.
1014.
Spronken 2003, p. 19.
1015.
Trechsel 2005, p. 278; Spronken 2003, p. 20; Spronken 2001, p. 334.
1016.
Trechsel 2005, p. 280; Spronken 2003, p. 26; Office of the United Nations High Commissioner for Human Rights 2005, p. 119; Penal Reform International 2001, p. 109.
1017.
See, in a similar vein, Spronken 2003, p. 356.
1018.
HRC, General Comment 13, Article 14, U.N. Doc. HRI/GEN/1/Rev.1 at 14 (1994), 21st session, 1984.
1019.
HRC, General Comment 32, Article 14, U.N. Doc. CCPR/C/GC/32, 23 August 2007, para 34.
1020.
HRC, Violeta Setelich v. Uruguay, Communication No. 63/1979, U.N. Doc. CCPR/C/OP/1 at 101 (1985), views of 28 October 1981; HRC, Pierre Désiré Engo v. Cameroon, Communication 1397/2005, U.N. Doc. CCPR/C/96/D/1397/2005, views of 22 July 2009, para 7.8; HRC, Marlem Carranza Alegre v. Peru, Communication No. 1126/2002, U.N. Doc. CCPR/C/85/D/1126/2002, views of 28 October 2005, para 7.5.
1021.
HRC, Ramil Rayos v. The Philippines, Communication No. 1167/2003, U.N. Doc. CCPR/C/81/D/1167/2003 (2004), views of 27 July 2004, para 7.3; HRC, Saodat Khomidova on behalf of her son, Bakhrom Khomidov, v. Tajikistan, Communication No. 1117/2002, U.N. Doc. CCPR/C/81/D/1117/2002 (2004), views of 29 July 2004, para 6.4; HRC, Little v. Jamaica, Communication No. 283/1988, U.N. Doc CCPR/C/43/D/283/1988(1991), views of 19 January 1988, para 8.3.
1022.
HRC, Nazira Sirageva on behalf of her son, Danis Siragev, v. Uzbekistan, Communication No. 907/2000, U.N. Doc CCPR/C/85/D/907/2000(2005), views of 1 November 2005, para 6.3; HRC, Gridin v. Russian Federation, Communication No. 770/1997, U.N. Doc CCPR/C/69/D/770/1997(2000), views of 20 July 2000, para 8.5.
1023.
HRC, Little v. Jamaica, Communication No. 283/1988, U.N. Doc CCPR/C/43/D/283/1988(1991), views of 19 January 1988, para 8.3.
1024.
Note by the Secretary-General, Protection of human rights and fundamental freedoms while countering terrorism, 6 August 2008, U.N. Doc A/63/223, para 38, 39.
1025.
Ibid.
1026.
SPT, Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Maldives, U.N. Doc CAT/OP/MDV/1, 26 February 2009, para 107; SPT, Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Sweden, U.N. Doc CAT/OP/SWE/1, 10 September 2008, para 85.
1027.
SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Mexico, U.N. Doc CAT/OP/MEX/1, 31 May 2010, para 126. See, in a similar vein, SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Republic of Paraguay, U.N. Doc CAT/OP/PRY/1, 7 June 2010, paras 50–52.
1028.
Principles 18(1) and (2) of the U.N. Body of Principles. Emphasis added.
1029.
Principle 18(3) of the U.N. Body of Principles.
1030.
Principle 18(4) of the U.N. Body of Principles.
1031.
United Nations Basic Principles on the Role of Lawyers, 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.
1032.
Article 8(2)(c) of the ACHR.
1033.
Article 8(2)(d) of the ACHR.
1034.
I-ACtHR, Suárez-Rosero v. Ecuador, judgment of 12 November 1997, para 83.
1035.
See ECommHR, Can v. Austria, Report of the Commission, adopted on 12 July 1984, Application N. 9300/81, para 52.
1036.
ECtHR, Lanz v. Austria, judgment of 31 January 2002, Application No. 24430/94, para 50.
1037.
Ibid; ECtHR, Sakhnovskiy v. Russia, judgment of 2 November 2010, Application No. 21272/03, para 97.
1038.
ECtHR, Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Application No. 7819/77; 7878/77, para 111.
1039.
Id., para 113.
1040.
ECtHR, Sakhnovskiy v. Russia, judgment of 2 November 2010, Application No. 21272/03, para 102.
1041.
Ibid.
1042.
Ibid.
1043.
ECtHR, Lanz v. Austria, judgment of 31 January 2002, Application No. 24430/94, para 52.
1044.
Ibid.
1045.
ECtHR, Brennan v. the United Kingdom, judgment of 16 October 2001, Application No. 39846/98, para 58.
1046.
Id., para 62.
1047.
ECtHR, Öcalan v. Turkey, judgment of 12 March 2003, Application No. 46221/99, para 144.
1048.
Id., para 149; ECtHR, Öcalan v. Turkey, judgment of 12 May 2005, Application No. 46221/99, para 133.
1049.
ECtHR, S. v. Switzerland, judgment of 28 November 1991, Application No. 12629/87; 13965/88, para 46.
1050.
Id., para 49.
1051.
Ibid.
1052.
Ibid.
1053.
ECtHR, Sarban v. Moldova, judgment of 4 October 2005, Application No. 3456/05, para 125.
1054.
Id., para 128.
1055.
ECtHR, Castravet v. Moldova, judgment of 13 March 2007, Application No. 23393/05, para 45; ECtHR, Modarca v. Moldova, judgment of 10 May 2007, Application No. 14437/05, para 80.
1056.
ECtHR, Castravet v. Moldova, judgment of 13 March 2007, Application No. 23393/05, para 45.
1057.
Id., para 51.
1058.
ECtHR, Öcalan v. Turkey, judgment of 12 March 2003, Application No. 46221/99, para 154.
1059.
Id., para 152.
1060.
Id., para 154.
1061.
Id., para 155; ECtHR, Öcalan v. Turkey, judgment of 12 May 2005, Application No. 46221/99, para 137.
1062.
ECtHR, Sakhnovskiy v. Russia, judgment of 2 November 2010, Application No. 21272/03, para 103.
1063.
ECtHR, Sarban v. Moldova, judgment of 4 October 2005, Application No. 3456/05, para 130.
1064.
ECtHR, Castravet v. Moldova, judgment of 13 March 2007, Application No. 23393/05, paras 56–61; ECtHR, Modarca v. Moldova, judgment of 10 May 2007, Application No. 14437/05, paras 96–99.
1065.
ECtHR, Cotlet v. Romania, judgment of 3 June 2003, Application No. 38565/97, paras 59–65.
1066.
Trechsel 2005, p. 281.
1067.
ECtHR, Golder v. the United Kingdom, judgment of 21 February 1975, Application No. 4451/70.
1068.
Id., para 43.
1069.
Id., para 44.
1070.
Id., para 45.
1071.
ECtHR, Campbell v. the United Kingdom, judgment of 25 March 1992, Application No. 13590/88, para 30.
1072.
Id., para 44.
1073.
Ibid.
1074.
Id., para 45.
1075.
Id., para 47.
1076.
Id., para 48.
1077.
Ibid.
1078.
Ibid.
1079.
Id., para 50.
1080.
Id., para 50.
1081.
ECtHR, Jankauskas v. Lithuania, judgment of 24 February 2005, Application No. 59304/00.
1082.
Id., para 21.
1083.
Ibid.
1084.
Id., para 22.
1085.
ECtHR, Boris Popov v. Russia, judgment of 28 October 2010, Application No. 23284/04.
1086.
Id., para 108.
1087.
Id., para 111.
1088.
Rule 23(1) of the EPR.
1089.
CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 23.
1090.
Rule 23(2) of the EPR.
1091.
Rule 23(4) of the EPR.
1092.
Rule 23(5) of the EPR.
1093.
CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 23.
1094.
CPT, Report to the Government of Bosnia and Herzegovina carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 27 April to 9 May 2003, CPT/Inf(2004)40, Strasbourg, 21 December 2004, para 102; CPT, Report to the Azerbaijani Government on the visit to Azerbaijan carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002, CPT/Inf(2004)36, Strasbourg, 7 December 2004, para 139; CPT, Report to the Andorran Government on the visit to Andorra carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 27 to 29 May 1998, CPT/Inf(2000)11, Strasbourg, 20 July 1998, para 19.
1095.
African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, DOC/OS(XXX) 247, reprinted in 12 International Human Rights Reports 1180, 2005.
1096.
Ibid.
1097.
Ibid.
1098.
Rule 12(B) of the ICTY Rules of Detention.
1099.
Rule 65(A) of the ICTY Rules of Detention. The right to contact with counsel also applies to the post-conviction stage. Different was the situation at Spandau prison. According to Goda, ‘[t]he prison directors never once allowed a lawyer to visit Funk, nor did they allow Funk to correspond with [lawyers] by mail, nor did they allow him to sign a power of attorney so that they might somehow pursue his case’. Goda explains this by saying that ‘[c]rucial is the fact that the Soviets would allow nothing to occur in Spandau that might threaten the legitimacy of the verdicts including discussions with lawyers or petitions to higher authorities’ and stated that ‘in his ten years in Spandau, Funk was never allowed a word of spoken or written communication with his attorneys’; Goda 2007, p. 65.
1100.
See, e.g., Rule 58(A) of the ICTY Rules of Detention.
1101.
ICTY, Decision on Krajišnik Request and on Prosecution Motion, Prosecutor v. Krajišnik, Case No. IT-00-39-A, A. Ch., 11 September 2007, para 33.
1102.
Rule 65(C) of the ICTY Rules of Detention. .
1103.
See Rule 65(D) in conjunction with Rule 61 of the ICTY Rules of Detention.
1104.
Rule 65(B) of the ICTY Rules of Detention.
1105.
Ibid.
1106.
United Nations Detention Unit, House Rules for Detainees, as amended June 1995, IT/99, issued by the Registrar April 1995.
1107.
Regulation 11(A).
1108.
Regulation 11(B).
1109.
Regulation 11(C).
1110.
Regulation 11(D).
1111.
Regulation 21(A) of the Regulations.
1112.
United Nations Detention Unit, House Rules for Detainees, as amended June 1995, IT/99, issued by the Registrar April 1995.
1113.
Rule 65(B) of the ICTY Rules of Detention.
1114.
Rule 61(D).
1115.
See, supra, p. 571.
1116.
Article 6 of the Agreement on Security and Order.
1117.
Regulation 30(A).
1118.
Regulation 30(B).
1119.
Regulation 30(A).
1120.
Regulation 33(C).
1121.
Regulation 31(B).
1122.
Regulation 39(A).
1123.
Regulation 39(B).
1124.
ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 126.
1125.
Ibid.
1126.
Ibid.
1127.
Regulation 40(A); United Nations Detention Unit, House Rules for Detainees, as amended June 1995, IT/99, issued by the Registrar April 1995.
1128.
Regulation 41(B).
1129.
Sub-Regulations 42(A) and (C).
1130.
Regulation 42(B).
1131.
Regulation 44(A).
1132.
ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 70.
1133.
Id., paras 112–114; ICTY, Statement by Tribunal President Judge Fausto Pocar to the Security Council 7 June 2006, The Hague, 7 June 2006; ICTY, Order Concerning the Preparation and Presentation of the Defence Case, Prosecutor v. Milošević, Case No. IT-02-54-T, T. Ch., 17 September 2003, para 10.
1134.
ICTY, Statement by Tribunal President Judge Fausto Pocar to the Security Council 7 June 2006, The Hague, 7 June 2006.
1135.
ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 70, 115, 116, 120, 122.
1136.
Id., para 105.
1137.
Id., para 106.
1138.
Ibid.
1139.
Ibid.
1140.
Id., para 117, 119.
1141.
Id., para 119.
1142.
Id., ‘Findings and recommendations’, para 12.
1143.
Id., para 130.
1144.
ICTR, interview conducted by the author with Christopher Black, defence counsel working before the ICTR, Arusha—Tanzania, May 2008.
1145.
ICTY, interview conducted by the author with a senior staff member of the ICTY Registry, The Hague—Netherlands, July 2011.
1146.
ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 24 sub (C).
1147.
ICTY, Decision on the Motion of the Defence Seeking Modification to the Conditions of Detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 17 April 1996 (emphasis added).
1148.
Rule 65(A) of the ICTY Rules of Detention. Emphasis added.
1149.
ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 112.
1150.
ICTY, Order, Prosecutor v. Milošević, Case No. IT-02-54-T, T. Ch., 16 April 2002.
1151.
Ibid.
1152.
See ICTY, Decision on Motion Number 19, Prosecutor v. Šešelj, Case No. IT-03-67-PT, T. Ch. II, 30 September 2003.
1153.
See ICTY, Prosecution’s Response to oral Request for Reconsideration of Restrictions on Privileged Communication with Zoran Krasic and Slavko Jerkovic, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch. III, 25 August 2009, para 2.
1154.
ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 114.
1155.
Id., para 117; ICTY, Statement by Tribunal President Judge Fausto Pocar to the Security Council 7 June 2006, The Hague, 7 June 2006.
1156.
ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 119.
1157.
ICTY, Decision on Appeal against Decision Denying Permission for Legal Representatives to Visit the Detainee, Prosecutor v. Šešelj, Case No. IT-03-67-PT, President, 25 May 2006, para 1.
1158.
Id., para 6.
1159.
Ibid.
1160.
Ibid.
1161.
Ibid.
1162.
Id., para 8.
1163.
Ibid.
1164.
Id., paras 8, 11.
1165.
ICTY, Decision on Krajišnik Request and on Prosecution Motion, Prosecutor v. Krajišnik, Case No. IT-00-39-A, A. Ch., 11 September 2007, para 4. Footnote omitted.
1166.
Id., para 19.
1167.
Id., para 14.
1168.
Ibid. Footnote omitted.
1169.
Ibid. Footnote omitted. At the time of the appeal, no such legal associates had been designated.
1170.
Id., para 18.
1171.
Id., para 33. Footnote omitted.
1172.
Ibid.
1173.
Ibid.
1174.
Ibid. Footnote omitted.
1175.
Id., para 35.
1176.
Ibid.
1177.
Id., para 36.
1178.
Ibid.
1179.
Id., para 46.
1180.
ICTY, Transcripts, Prosecutor v. Krajišnik, Case No. IT-00-39-A, A. Ch., 2 November 2007, Status Conference, p. 123, line 20 to p. 135, line 6.
1181.
Id., p. 126, lines 20–24.
1182.
Id., p. 127, lines 8–11.
1183.
Id., p. 130, lines 4–5.
1184.
Id., p. 131, lines 10–16.
1185.
Id., p. 128, lines 10–15, p. 131, lines 17–20.
1186.
ICTY, Order of the President on the Complaint of Defence Counsel for the Accused Naletilić, Prosecutor v. Naletilić and Martinović, Case No. IT-98-34, President, 5 June 2001.
1187.
Ibid.
1188.
ICTY, Decision on Appeal Against the Decision of the Registry of 20 January 2006, Prosecutor v. Šešelj, Case No. IT-03-67-PT, President. 7 April 2006, para 1.
1189.
Id., para 2.
1190.
Id., para 2. Emphasis added. Footnote omitted.
1191.
ICTY, Redacted Version of the “Decision on Monitoring the Privileged Communications of the Accused with Dissenting Opinion by Judge Harhoff in Annex” Filed on 27 November 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch. III, 1 December 2008, para 14.
1192.
ICTY, Decision on Vojislav Šešelj’s Request for Review of Registrar’s Decision of 10 September 2009, Prosecutor v. Šešelj, Case No. IT-03-67-T, President, 21 October 2009, para 6.
1193.
ICTY, Redacted Version of the “Decision on Monitoring the Privileged Communications of the Accused with Dissenting Opinion by Judge Harhoff in Annex” Filed on 27 November 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch. III, 1 December 2008, paras 22–25.
1194.
Id., para 26.
1195.
Ibid. Emphasis in the original.
1196.
Id., para 33.
1197.
Id., para 34.
1198.
See, in more detail, ICTY, Registry Submission Pursuant to Rule 33(B) Seeking the Direction form the President Regarding the Trial Chamber’s Decision of 27 November 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, President, 1 December 2008.
1199.
ICTY, Registry Submission Pursuant to Rule 33(B) Regarding the Trial Chamber’s Decision on Monitoring of Vojislav Šešelj’s Communications, Prosecutor v. Šešelj, Case No. IT-03-67-T, T. Ch. III, 1 December 2008, paras 7–8.
1200.
Id., para 9.
1201.
ICTY, Decision on Urgent Registry Submission Pursuant to Rule 33(B) Seeking Direction from the President on the Trial Chamber’s Decision of 27 November 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, President, 17 December 2008, para 9.
1202.
See ICTY, Registry Submission Pursuant to Rule 33(B) Following the President’s Decision of 17 December 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, A. Ch., 17 February 2009.
1203.
ICTY, Decision on the Registry Submission Pursuant to Rule 33(B) Following the President’s Decision of 17 December 2008, Prosecutor v. Šešelj, Case No. IT-03-67-T, A. Ch., 9 April 2009.
1204.
See, in more detail, ICTY, Professor Vojislav Šešelj’s Reply to the Registry Submission Pursuant to Rule 33(B) Regarding the Accused’s Submission No. 425, Prosecutor v. Šešelj, Case No. IT-03-67-T, President, 16 October 2009.
1205.
ICTY, Registry Submission Pursuant to Rule 33(B) Regarding the Accused’s Submission No. 425, Prosecutor v. Šešelj, Case No. IT-03-67-T, President, 23 September 2009, para 6. See, also, ICTY, Decision on Vojislav Šešelj’s Request for Review of Registrar’s Decision of 10 September 2009, Prosecutor v. Šešelj, Case No. IT-03-67-T, President, 21 October 2009, para 2.
1206.
ICTY, Registry Submission Pursuant to Rule 33(B) Regarding the Accused’s Submission No. 425, Prosecutor v. Šešelj, Case No. IT-03-67-T, President, 23 September 2009, para 6.
1207.
ICTY, Decision on Vojislav Šešelj’s Request for Review of Registrar’s Decision of 10 September 2009, Prosecutor v. Šešelj, Case No. IT-03-67-T, President, 21 October 2009, para 20.
1208.
Id., para 21.
1209.
Id., para 21.
1210.
ICTY, Decision on the Accused’s Oral Request to Reinstate Messrs. Zoran Krasic and Slavko Jerkovic as Privileged Associates, Prosecutor v. Šešelj, Case No. IT-03-67-T, Trial Chamber III, 10 February 2010, paras 1–3.
1211.
Id., para 8. This time Šešelj had exhausted the procedure before the Registrar and the President.
1212.
Id., para 16.
1213.
Rule 10; Article 1 of the document ‘General information for Detainees’ (on file with the author).
1214.
Rule 65.
1215.
See ICTR, Decision on Hassan Ngeze’s Motions of 25 February 2008 and 6 and 19 March 2008, Ngeze v. the Prosecutor, Case No. ICTR-99-52-R, A. Ch., 11 April 2008, footnote 5. Rule 44(A) of the RPE stipulates that ‘Counsel engaged by a suspect or an accused shall file his power of attorney with the Registrar at the earliest opportunity. Subject to verification by the Registrar, a counsel shall be considered qualified to represent a suspect or accused, provided that he is admitted to the practice of law in a State, or is a University professor of law’. Rule 45bis provides that ‘Rules 44 and 45 shall apply to any person detained under the authority of the Tribunal’.
1216.
ICTR, interview conducted by the author with UNDF detention authorities, Arusha—Tanzania, May 2008.
1217.
See Regulation 6 of the section of the Regulations entitled ‘correspondence’.
1218.
See Regulation 11 of the section of the Regulations entitled ‘correspondence’.
1219.
Ibid.
1220.
ICTR, interviews conducted by the author with the UNDF detention authorities, Arusha—Tanzania, May 2008.
1221.
The document ‘Note to all Security Officers & Detainees’, which sets out the telephone regime at the UNDF, distinguishes between, on the one hand, personal calls by or to family members, relatives and investigators and, on the other, official calls by or to defence counsel, co-counsel and assistants.
1222.
See Regulation 7 of the section of the Regulations entitled ‘telephone calls’.
1223.
ICTR, Decision on Hassan Ngeze’s Motions of 15 April 2008 and 2 May 2008, Ngeze v. the Prosecutor, Case No. ICTR-99-52-R, A. Ch., 15 May 2008.
1224.
Ibid.
1225.
ICTR, interview conducted by the author with Chief Taku, defence counsel working before both the SCSL and the ICTR, Arusha—Tanzania, May 2008.
1226.
Regulation 3.
1227.
Article 1 of ‘Note to lawyers Regarding Legal Visits to Detainees at the United Nations Detention Facility’(on file with the author).
1228.
Id., Article 2.
1229.
Id., Article 3.
1230.
Id., Article 5.
1231.
See Regulation 1 of the Part of the Regulations entitled ‘Visits’.
1232.
See Regulation 2 of the Part of the Regulations entitled ‘Visits’; Article 1 of ‘Note to lawyers Regarding Legal Visits to Detainees at the United Nations Detention Facility’.
1233.
Regulation 10.
1234.
Article 6 of ‘Note to lawyers Regarding Legal Visits to Detainees at the United Nations Detention Facility’.
1235.
ICTR, Decision on Ndayambaje’s Extremely Urgent Motion Regarding Permission for Each of Ndayambaje’s Counsel to Bring a Laptop into the UNDF, Prosecutor v. Ndayambaje, Case No. ICTR-98-42-T, T. Ch. II, 23 November 2007, paras 1–2.
1236.
Id., para 12.
1237.
Id., para 15.
1238.
Id., para 18.
1239.
Id., para 22.
1240.
Ibid.
1241.
Id., paras 40–49.
1242.
ICTR, Decision on Arsène Shalom Ntahobali’s Extremely Urgent Motion for Greater Access to the Accused at UNDF, Prosecutor v. Ntahobali and Nyiramasuhuko, Case No. ICTR-97-21-T, T. Ch. II, 3 March 2006, para 1.
1243.
Id., para 5.
1244.
Ibid.
1245.
Id., para 6.
1246.
Id., para 11.
1247.
Id., para 12.
1248.
Id., paras 15–19.
1249.
ICTR, Decision on Jean-Bosco Barayagwiza’s Urgent Motion Requesting Privileged Access to the Appellant without Attendance of Lead Counsel, Nahimana et al. v. the Prosecutor, Case No. ICTR-99-52-A, A. Ch., 17 August 2006.
1250.
Rule 65.
1251.
See Article 12 of ‘Note to lawyers Regarding Legal Visits to Detainees at the United Nations Detention Facility’.
1252.
Regulations 12, 13.
1253.
See Article 10 of ‘Note to lawyers Regarding Legal Visits to Detainees at the United Nations Detention Facility’.
1254.
ICTR, Decision on Hassan Ngeze’s Motions of 8 and 26 August 2008, Ngeze v. the Prosecutor, Case No. ICTR-99-52-R, A. Ch., 28 October 2008.
1255.
Ibid.
1256.
Regulation 14.
1257.
Ibid.
1258.
Regulation 16 provides, as far as relevant, that, in the situations mentioned in Regulation 15, ‘the Registrar may, at the request of the Commanding Officer or otherwise, order that all visits to that detainee, other than by counsel, be recorded for a period not exceeding seven days’. Emphasis added.
1259.
Furthermore, it is explicitly provided in the relevant legal provisions that ‘Defence Counsel are reminded that the Detention Facility provides meals to detainees only, therefore those who plan to spend the day with their client at the Detention Facility should bring their own lunch’; see Article 14 of ‘Note to lawyers Regarding Legal Visits to Detainees at the United Nations Detention Facility’. Emphasis in the original.
1260.
ICTR, interview conducted by the author with Christopher Black, defence counsel working before the ICTR, Arusha—Tanzania, May 2008.
1261.
ICTR, interview conducted by the author with Chief Taku, defence counsel working before the ICTR, Arusha—Tanzania, May 2008.
1262.
ICTR, Decision on the Defence’s Motion Requesting Permission for Its Investigator to Visit the Accused in the Detention Facilities, Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, T. Ch. I, 11 June 1997.
1263.
Ibid.
1264.
Ibid.
1265.
Ibid.
1266.
Ibid. The Defence in Ntabakuze noted that the Rutaganda Decision did not relate to its situation, since that Decision was rendered under a different regime whereby ‘investigators [were] hired under the Tribunal’s authority and paid by the Registrar’. At the time of the Ntabakuze Decision in 2002, ‘investigators and legal assistants [were] members of the Defence teams, under the authority of the Tribunal’ and, according to the Defence, ought therefore to ‘be treated (…) not merely as private investigators’; ICTR, Urgent Motion by Ntabakuze’s Defence Seeking an order for the Registrar to Lift Some of the Measures Restricting Access by Defence Investigators to the Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-99-41-I, T. Ch. III, 30 April 2002, para 19.
1267.
ICTR, Decision on the Defence’s Motion Requesting Permission for Its Investigator to Visit the Accused in the Detention Facilities, Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, T. Ch. I, 11 June 1997.
1268.
Ibid.
1269.
ICTR, Decision on the Defence Urgent Motion for Relief under Rule 54 to Prevent the Commandant of the UNDF from Obstructing the Course of International Criminal Justice, Prosecutor v. Mugiraneza et al., Case No. ICTR-99-50-T, T. Ch. II, 19 September 2001, para 9.
1270.
Id., para 6.
1271.
Id., para 7.
1272.
Id., para 2.
1273.
Id., para 15.
1274.
Id., para 8.
1275.
Ibid.
1276.
Id., para 10. Emphasis in the original.
1277.
Id., para 12.
1278.
Id., para 13.
1279.
Id., paras 16–20.
1280.
ICTR, Decision on the Defence Motion for Declaratory Relief from Administrative Measures Imposed on Hasan Ngeze at the UNDF, Prosecutor v. Nahimana, Ngeze and Barayagwiza, Case No. ICTR-99-52-I, T. Ch. I, 9 May 2002.
1281.
Ibid.
1282.
Ibid.
1283.
This was based on Article 8(2)(b) of the Code of Professional Conduct for Defence Counsel, which stipulates that the lawyer-client privilege is affected ‘[w]hen the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure’; ibid.
1284.
ICTR, Decision on Ntabakuze’s Motion Regarding Access to the United Nations Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. III, 10 June 2002.
1285.
Id., para 1.
1286.
ICTR, Urgent Motion by Ntabakuze’s Defence Seeking an order for the Registrar to Lift Some of the Measures Restricting Access by Defence Investigators to the Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-99-41-I, T. Ch. III, 30 April 2002, para 1.
1287.
ICTR, Decision on Ntabakuze’s Motion Regarding Access to the United Nations Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. III, 10 June 2002, para 1.
1288.
ICTR, Urgent Motion by Ntabakuze’s Defence Seeking an order for the Registrar to Lift Some of the Measures Restricting Access by Defence Investigators to the Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-99-41-I, T. Ch. III, 30 April 2002, para 4.
1289.
Id., para 27.
1290.
Ibid.
1291.
Id., para 7.
1292.
Id., para 8.
1293.
Id., para 9.
1294.
Id., para 8.
1295.
ICTR, Decision on Ntabakuze’s Motion Regarding Access to the United Nations Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. III, 10 June 2002, para 1.
1296.
ICTR, Urgent Motion by Ntabakuze’s Defence Seeking an order for the Registrar to Lift Some of the Measures Restricting Access by Defence Investigators to the Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-99-41-I, T. Ch. III, 30 April 2002, para 14.
1297.
Id., para 23, 34.
1298.
ICTR, Decision on Ntabakuze’s Motion Regarding Access to the United Nations Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. III, 10 June 2002, para 2.
1299.
Id., para 5.
1300.
ICTR, Decision on the Defence Motion to Protect the Applicant’s Right to Full Answer and Defence, Prosecutor v. Bizimungu, Case No. ICTR-99-50-I, T. Ch. II, 15 November 2002. See, also, Spronken 2006, p. 93.
1301.
ICTR, Decision on the Defence Motion to Protect the Applicant’s Right to Full Answer and Defence, Prosecutor v. Bizimungu, Case No. ICTR-99-50-I, T. Ch. II, 15 November 2002, para 1.
1302.
Id., para 2.
1303.
Id., para 3.
1304.
Id., para 8.
1305.
Id., para 17.
1306.
Id., para 19.
1307.
Id., para 20.
1308.
Id., para 26. Rule 45ter of the RPE provides that ‘(A) Counsel and Co-Counsel, whether assigned by the Registrar or appointed by the client for the purposes of proceedings before the Tribunal, shall furnish the Registrar, upon date of such assignment or appointment, a written undertaking that he will appear before the Tribunal within a reasonable time as specified by the Registrar. (B) Failure by Counsel or Co-Counsel to appear before the Tribunal, as undertaken, shall be a ground for withdrawal by the Registrar of the assignment of such Counsel or Co-Counsel or the refusal of audience by the Tribunal or the imposition of any other sanctions by the Chamber concerned’.
1309.
Id., para 27.
1310.
Ibid.
1311.
Id., para 28.
1312.
Id., para 29.
1313.
ICTR, Decision on the Defence Motion for Access for Investigators and Assistants to the Accused in the Absence of Counsel, Prosecutor v. Nyiramasuhuko et al., Case No. ICTR-97-21-T (Case No. ICTR-98-42-T), T. Ch. II, 20 November 2002, para 1.
1314.
Id., para 2.
1315.
Id., para 5.
1316.
Id., para 7.
1317.
Id., para 8.
1318.
Id., paras 9–13.
1319.
ICTR, Decision on Appellant Ferdinand Nahimana’s Motion for Assistance from the Registrar in the Appeals Phase, Nahimana, Barayagwiza and Ngeze v. the Prosecutor, Case No. ICTR-99-52-A, A. Ch., 3 May 2005.
1320.
Id., para 6–7.
1321.
ICTR, Decision on Jean-Bosco Barayagwiza’s Urgent Motion Requesting Privileged Access to the Appellant without Attendance of Lead Counsel, Nahimana et al . v. the Prosecutor, Case No. ICTR-99-52-A, A. Ch., 17 August 2006.
1322.
ICTR, Decision on Hassan Ngeze’s Motions of 15 April 2008 and 2 May 2008, Ngeze v. the Prosecutor, Case No. ICTR-99-52-R, A. Ch., 15 May 2008. Footnotes omitted. See, in a similar vein, ICTR, Decision on Hassan Ngeze’s Motions of 17 June 2008 and 10 July 2008, Ngeze v. the Prosecutor, Case No. ICTR-99-52-R, A. Ch., 23 July 2008.
1323.
ICC Registry, First Seminar of the Registry on Detention Matters, “Family Visits”, Proposed Report for Consultation, 8–9 July 2008, The Hague—Netherlands, p. 12, para 22. Document on file with the author.
1324.
Ibid.
1325.
Ibid.
1326.
Temminck Tuinstra 2009, p. 70.
1327.
Also, Rule 97 of the SCSL RPE prescribes that ‘[a]ll communications between lawyer and client shall be regarded as privileged, and consequently disclosure cannot be ordered, unless: (i) The client consents to such disclosure; or (ii) The client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. (iii) The client has alleged ineffective assistance of counsel, in which case the privilege is waived as to all communications relevant to the claim of ineffective assistance’.
1328.
SCSL, Detention Operational Order No. 3:1, issued on 18 July 2008 by Ray Cardinal Chief of Detention. Document on file with the author.
1329.
Ibid.
1330.
Ibid.
1331.
Ibid.
1332.
Ibid.
1333.
It is noted, in this regard, that Chief Taku, international defence counsel who has worked before both the ICTR and the SCSL, was very appreciative of the possibilities to contact his client detained at the SCLS Detention Facility by telephone; ICTR, interview conducted by the author withChief Taku, defence counsel working before the SCSL and the ICTR, Arusha—Tanzania, May 2008.
1334.
SCSL, Transcripts, Prosecutor v. Taylor, Case No. SCSL-2003-01-PT, T. Ch. II, 21 June 2006, Initial Appearance, 2:18 P.M., p. 7.
1335.
Id., p. 8.
1336.
SCSL, Decision on Defence Oral Application for Orders Pertaining to the Transfer of the Accused to The Hague, Prosecutor v. Taylor, Case No. SCSL-03-1-PT, T. Ch. II, 23 June 2006.
1337.
Ibid.
1338.
SCSL, Detention Operational Order No. 3:10, issued on 28 July 2004 by Barry Wallace, Chief of Detention; SCSL, Detention Operational Order No. 8:1, issued on 12 October 2004 by Barry Wallace Chief of Detention. Both documents are on file with the author.
1339.
SCSL, Detention Operational Order No. 3:1, issued on 18 July 2008 by Ray Cardinal Chief of Detention. Document on file with the author.
1340.
Rule 44(C) of the SCSL Rules of Detention.
1341.
SCSL, Detention Operational Order No. 3:10, issued on 28 July 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
1342.
Ibid.
1343.
Ibid.
1344.
Rule 44(C) of the SCSL Rules of Detention.
1345.
SCSL, Detention Operational order No. 3:4, issued on 20 February 2006 by Barry Wallace, Chief of Detention. Document on file with the author.
1346.
SCSL, Detention Operational Order No. 3:10, issued on 28 July 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
1347.
Ibid.
1348.
Rule 41(B) prescribes that ‘[a]ll visits shall be conducted in the sight and within hearing of the staff of the Detention Facility’.
1349.
Rule 44(D) of the SCSL Rules of Detention. See, also, SCSL, Detention Operational Order No. 3:10, issued on 28 July 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
1350.
SCSL, Detention Operational Order No. 3:10, issued on 28 July 2004 by Barry Wallace, Chief of Detention. Document on file with the author.
1351.
Ibid.
1352.
Rule 44(B) of the SCSL Rules of Detention.
1353.
SCSL, Press Release, Press and Public Affairs Office, 11 August 2003.
1354.
SCSL, Decision Prohibiting Communications and Visits, Prosecutor v. Hinga Norman, Case No. SCSL-2003-08-PT, Registry, 20 January 2004.
1355.
SCSL, Decision of the President on Urgent and Public Defence Motion Requesting Cessation of Video Surveillance of Legal Consultations, Prosecutor v. Taylor, Case No. SCSL-03-01-PT, President, 21 February 2007, para 1.
1356.
Id., paras 29–31.
1357.
Rule 65(A) of the STL Rules of Detention.
1358.
Article 22(B) of the Directive on the Assignment of Defence Counsel stipulates that ‘[a]t the request of the lead counsel and in accordance with the Legal Aid Policy envisaged in Article 37, the Head of the Defence Office may assign persons assisting counsel, such as legal assistants, consultants, investigators, case managers, interpreters and legal interns, to provide support to the lead counsel. Only persons assigned or approved by the Head of the Defence Office may assist counsel with the defence of the suspect or accused. The Head of the Defence Office may impose qualification requirements for persons assisting counsel. The lead counsel, co-counsel and the persons assisting him shall be referred to as the defence team. The lead counsel is responsible for supervising all defence team members, including co-counsel’. Further, Article 22(D) prescribes that ‘[a]ll members of the Defence Team shall be bound by the Statute, the Rules, the Rules of Detention, the Code of Professional Conduct, this Directive and any other applicable rules or regulations’.
1359.
Rule 65(D) of the STL Rules of Detention.
1360.
Rule 65(E) of the STL Rules of Detention.
1361.
Ibid.
1362.
Rule 65(F) of the STL Rules of Detention. See, in a similar vein, Rule 67(A) of the STL Rules of Detention. Emphasis added.
1363.
Rule 65(C) of the STL Rules of Detention.
1364.
STL, Order Regarding the Detention of Persons Detained in Lebanon in connection with the Case of the Attack against Prime Minister Rafiq Hariri and Others, Case No. CH/PTJ/2009/06, Pre-Trial Judge, 29 April 2009.
1365.
STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev, President, 21 April 2009, para 6.
1366.
Id., para 7, sub (i).
1367.
Id., para 13.
1368.
Id., para 15.
1369.
Id., para 16. Footnote omitted.
1370.
Id., para 17.
1371.
Id., para 18.
1372.
Id., para 19.
1373.
No details were mentioned of such circumstances or of the original reasons, if at all existent, for restricting this right. Ibid.
1374.
Id., para 30.
1375.
Regulation 68 of the RoC provides, as far as relevant, that ‘[p]ersons assisting counsel (…) may include persons who can assist counsel in the presentation of the case before a Chamber’.
1376.
Regulation 168 of the RoR.
1377.
Regulation 169(1)(a) of the RoR.
1378.
Regulation 178(1) of the RoR.
1379.
Regulation 178(2) of the RoR.
1380.
They are neither applicable to visits by diplomatic or consular representatives, representatives of the inspectorate and officers of the Court; see Regulation 180(1) of the RoR.
1381.
ICC, Transcripts, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, P.-T. Ch. I, 9 November 2006, p. 15, lines 8–17.
1382.
Id., p. 18, lines 16–21.
1383.
Id., p. 19, lines 4–5.
1384.
Regulation 181(1) of the RoR.
1385.
Regulation 181(2) of the RoR.
1386.
Regulation 182(1) of the RoR.
1387.
Ibid. Such documents are in all other aspects treated as regular mail and dealt with in accordance with the relevant provisions. See Regulation 182(2) of the RoR.
1388.
Regulation 184(2) of the RoR.
1389.
STL, Order on Conditions of Detention, Case No. CH/PRES/2009/01/rev, President, 21 April 2009, para 16. Footnote omitted.
1390.
Principle 18(3) of the U.N. Body of Principles.
1391.
ECtHR, Moiseyev v. Russia, judgment of 9 October 2008, Application No. 62936/00, par 266.
1392.
Ibid.
1393.
Regulation 169(1)(a) of the RoR.
1394.
Temminck Tuinstra 2009, p. 67.
1395.
Id., p. 71.
1396.
Ibid.
1397.
Id., p. 69.
1398.
Id., p. 71.
1399.
Zappalà 2003, p. 125.
1400.
ICTY, Decision on Krajišnik Request and on Prosecution Motion, Prosecutor v. Krajišnik, Case No. IT-00-39-A, A. Ch., 11 September 2007, para 35.
1401.
ICTY, Registry Submission Pursuant to Rule 33(B) Regarding the Accused’s Submission No. 425, Prosecutor v. Šešelj, Case No. IT-03-67-T, President, 23 September 2009, para 6.
1402.
ICTY, Decision on Krajišnik Request and on Prosecution Motion, Prosecutor v. Krajišnik, Case No. IT-00-39-A, A. Ch., 11 September 2007, para 36.
1403.
Before 2005, Rule 67(A) of the ICTY Rules of Detention recognised that detained persons have the right to privileged communications with ‘defence counsel’. Since 2005, the right to privileged communications is laid down in Article 65(A) of the ICTY Rules of Detention and applies to communications with a detainee’s ‘legal representative’. See Temminck Tuinstra 2009, p. 70.
1404.
ICTR, Decision on Ntabakuze’s Motion Regarding Access to the United Nations Detention Facility, Prosecutor v. Bagosora, Kabiligi, Ntabakuze and Nsengiyumva, Case No. ICTR-98-41-T, T. Ch. III, 10 June 2002, para 2.
1405.
ICTR, Decision on the Defence Motion to Protect the Applicant’s Right to Full Answer and Defence, Prosecutor v. Bizimungu, Case No. ICTR-99-50-I, T. Ch. II, 15 November 2002, para 28.
1406.
Id., para 29.
1407.
Temminck Tuinstra 2009, p. 71.
1408.
Ibid.
1409.
Regulation 68 of the RoC provides, as far as relevant, that ‘[p]ersons assisting counsel (…) may include persons who can assist counsel in the presentation of the case before a Chamber’. Emphasis added.
1410.
Also, Rule 97 of the SCSL RPE prescribes that ‘[a]ll communications between lawyer and client shall be regarded as privileged, and consequently disclosure cannot be ordered, unless: (i) The client consents to such disclosure; or (ii) The client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure. (iii) The client has alleged ineffective assistance of counsel, in which case the privilege is waived as to all communications relevant to the claim of ineffective assistance’.
1411.
Rule 44(D) of the SCSL Rules of Detention. See, also, SCSL, Detention Operational Order No. 3:10, issued on 28 July 2004 by Barry Wallace, Chief of Detention. Document on file with the author. Emphasis added.
1412.
Article 22(B) of the Directive on the Assignment of Defence Counsel stipulates that ‘[a]t the request of the lead counsel and in accordance with the Legal Aid Policy envisaged in Article 37, the Head of the Defence Office may assign persons assisting counsel, such as legal assistants, consultants, investigators, case managers, interpreters and legal interns, to provide support to the lead counsel. Only persons assigned or approved by the Head of the Defence Office may assist counsel with the defence of the suspect or accused. The Head of the Defence Office may impose qualification requirements for persons assisting counsel. The lead counsel, co-counsel and the persons assisting him shall be referred to as the defence team. The lead counsel is responsible for supervising all defence team members, including co-counsel’. Further, Article 22(D) prescribes that ‘[a]ll members of the Defence Team shall be bound by the Statute, the Rules, the Rules of Detention, the Code of Professional Conduct, this Directive and any other applicable rules or regulations’.
1413.
Rule 65(F) of the STL Rules of Detention. See, in a similar vein, Rule 67(A) of the STL Rules of Detention.
1414.
Wilde 1989, p. 563.
1415.
Jewkes 2007, p. 447.
1416.
Bernstein 1998–1999, p. 128.
1417.
Feeney 1976–1977, p. 1359; Straight 1972–1973, p. 289; Bernstein 1998–1999, p. 128.
1418.
Hass 1973–1974, p. 401. See, in a similar vein, Cooper 1990, p. 272.
1419.
Straight 1972–1973, p. 285–286.
1420.
Feeney 1976–1977, p. 1355, 1365. See, in a similar vein, Cooper 1990, p. 272; Straight 1972–1973, p. 277, 279; Bernstein 1998–1999, p. 162.
1421.
Hass 1973–1974, p. 402.
1422.
Id., p. 401.
1423.
Cooper 1990, p. 272.
1424.
Id., p. 292.
1425.
Penal Reform International 2001, p. 112.
1426.
Cooper 1990, p. 292.
1427.
Bernstein 1998–1999, p. 165.
1428.
Cooper 1990, p. 272.
1429.
De Jonge 2010b, p. 305.
1430.
Ibid. See, in a similar vein, De Jonge 2010a, p. 940, where he states that ‘[n]ational and international prison authorities should realise that secrecy and fear of publicity are the worst enemies of developing good prison practice’.
1431.
The Supreme Court 1974, p. 171.
1432.
Straight 1972–1973, p. 274.
1433.
The Supreme Court 1974, p. 171.
1434.
Bernstein1998–1999, p. 143.
1435.
Jewkes 2007, p. 449.
1436.
Id., p. 450.
1437.
Id., p. 451.
1438.
Id., p. 455.
1439.
Id., p. 457; Van Zyl Smit and Snacken 2009, p. 228.
1440.
Johnson 2005, p. 256.
1441.
Penal Reform International 2001, pp. 112–113.
1442.
Johnson 2005, p. 255, 270. Possible negative effects of watching television—e.g. addiction, losing interest in other activities such as reading—have also been recognised; id., p. 269.
1443.
Jewkes 2007, p. 457.
1444.
Id., p. 458.
1445.
Van Zyl Smit and Snacken 2009, p. 257.
1446.
Johnson 2005, p. 257.
1447.
Office of the United Nations High Commissioner for Human Rights 2005, p. 125.
1448.
HRC, General Comment 10, Article 19, U.N. Doc. HRI/GEN/1/Rev.1 at 11 (1994), 19th session, 1983. Emphasis added.
1449.
See Manfred Nowak, Convention on Civil and Political Rights Commentary, Kehl 1993, p. 357, as cited in Penal Reform International 2001, p. 112.
1450.
SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Republic of Paraguay, U.N. Doc. CAT/OP/PRY/1, 7 June 2010, para 165(c).
1451.
See Article 13 ACHR; Article 9 ACHPR; Article 10 ECHR.
1452.
ECtHR, Hirst v. the United Kingdom, judgment of 6 October 2005, Application No. 74025/01, para 69.
1453.
Ibid.
1454.
Id., para 70.
1455.
ECtHR, Yankov v. Bulgaria, judgment of 11 December 2003, Application No. 39084/97, para 129. Since the case did not concern (denied) contact between a detained person and the media or the outside world more in general—the applicant had been disciplined by the prison authorities for having written down his thoughts about the detention conditions and staff members in a private manuscript, thoughts which the authorities considered to be offensive—the case will not be discussed here in further detail. The Court did find a violation of Article 10 ECHR.
1456.
ECommHR, Bamber v. the United Kingdom, admissibility decision of 11 September 1997, Application No. 33742/96.
1457.
Ibid.
1458.
Ibid.
1459.
Ibid.
1460.
Ibid.
1461.
The Commission’s decision was criticised by Livingstone; see Livingstone 2000, p. 318.
1462.
ECtHR, Nilsen v. the United Kingdom , admissibility decision of 9 March 2010, Application No. 36882/05.
1463.
Id., para 52.
1464.
Id., para 50.
1465.
Id., para 54.
1466.
Ibid.
1467.
Ibid.
1468.
Id., para 51. Emphasis added.
1469.
Easton 2011, p.156.
1470.
Rule 24(12) of the EPR.
1471.
Ibid.
1472.
CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 24(12).
1473.
Ibid.
1474.
Ibid.
1475.
ECtHR, Öcalan v. Turkey, judgment of 12 May 2005, Application No. 46221/99, paras 195–196.
1476.
CPT, Report to the Azerbaijani Government on the visit to Azerbaijan carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 24 November to 6 December 2002, CPT/Inf(2004)36, Strasbourg, 7 December 2004, para 69; CPT, Report to the Albanian Government on the visit to Albania carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 23 May to 3 June 2005, CPT/Inf(2006)24, Strasbourg, 12 July 2006, para 94.
1477.
See, specifically in respect of remand detainees, Rule 99 sub (c) of the EPR.
1478.
See, in a similar vein, Rule 63 of the STL Rules of Detention.
1479.
Rule 64bis(B) of the ICTY Rules of Detention. See, also, ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 3.
1480.
See, in contrast, e.g., Rule 64(A) and Rule 65(A) of the ICTY Rules of Detention.
1481.
Rule 64bis(C) of the ICTY Rules of Detention.
1482.
Emphasis added.
1483.
See, also, Regulation 35, which entitles a detained person to address the President on decisions made by the Registrar under Regulation 33(B).
1484.
Emphasis added.
1485.
Cited in ICTY, Decision, Prosecutor v. Milošević, Case No. IT-02-54, Deputy Registrar, 11 December 2003.
1486.
ICTY, Decision on the Motion of the Defence Filed Pursuant to Rule 64 of the Rules of Procedure and Evidence, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 3 April 1996, para 24 sub (F).
1487.
ICTY, Decision on the Motion of the Defence Seeking Modification to the Conditions of Detention of General Blaškić, Prosecutor v. Blaškić, Case No. IT-95-14-T, President, 17 April 1996.
1488.
ICTY, Press Release, CC/PIU/339-E, The Hague, 12 August 1998.
1489.
See, e.g., ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 80.
1490.
ICTY, Weekly Press Briefing, 31 October 2001.
1491.
ICTR, interview conducted by the author with Christopher Black, defence counsel working before the ICTR, Arusha—Tanzania, May 2008.
1492.
ICTY, Registry Submission Pursuant to Rule 33(B) Regarding the Accused’s Submission No. 425, Prosecutor v. Šešelj, Case No. IT-03-67-T, President, 23 September 2009, para 17. Šešelj responded to the allegation by saying that ‘[t]hese accusations are preposterous as it is a well-known fact that the Hague Tribunal has never enjoyed any professional or moral reputation’; ICTY, Decision on Vojislav Šešelj’s Request for Review of Registrar’s Decision of 10 September 2009, Prosecutor v. Šešelj, Case No. IT-03-67-T, Acting President, 21 October 2009, para 14.
1493.
See, e.g., ICTY, Decision on the Motion for provisional Release of the Accused Momir Talić, Prosecutor v. Brđanin and Talić, Case No. IT-99-36-T, T. Ch. II, 20 September 2002.
1494.
ICTY, Order Concerning Hearing to be Held in Sarajevo Pursuant to Rule 4 and Transfer of the Accused, Prosecutor v. Delić, Case No. IT-04-83-T, T. Ch. I, 1 February 2008.
1495.
ICTY, ICTY Manual on Developed Practices, UNICRI Publisher, Turin 2009, p. 160, para 38.
1496.
ICTY, Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 28 January 2011, para 10.
1497.
Id., para 11.
1498.
Id., para 11(A)-(G) and Annex B.
1499.
ICTY, Decision on Request for Reversal of Decision to Monitor Telephone Calls, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 21 April 2011, para 19.
1500.
Id., para 4.
1501.
ICTY, Decision, Prosecutor v. Milošević, Case No. IT-02-54, Deputy Registrar, 11 December 2003.
1502.
Ibid. See, also, ICTY, Press Release, The Hague, 12 December 2003, JL/P.I.S./810e.
1503.
ICTY, Decision, Prosecutor v. Milošević, Case No. IT-02-54, Deputy Registrar, 11 December 2003.
1504.
Ibid.
1505.
Ibid. It is noted in this regard that Rule 24(11) of the EPR prescribes that ‘[p]rison authorities shall ensure that prisoners are able to participate in elections, referenda and other aspects of public life in so far as their right to do so is not restricted by national law’. In view of the specific mandate of the international criminal tribunals and the context in which they operate, it may be argued that the detainees’ right to participate actively in national elections cannot in all situations be fully respected and may at times need to be curtailed. Consistent with the second part of Rule 24(11), it is recommended that the tribunals lay down the possibility to impose such restrictions in their legal frameworks.
1506.
ICTY, Decision, Prosecutor v. Milošević, Case No. IT-02-54, Deputy Registrar, 11 December 2003.
1507.
Ibid.
1508.
ICTY, Decision, Prosecutor v. Milošević, Case No. IT-02-54, Deputy Registrar, 8 January 2004.
1509.
See, also, ICTY, Press Release, CVO/P.I.S./814^e, The Hague, 9 January 2004.
1510.
ICTY, Decision, Prosecutor v. Šešelj, Case No. IT-03-67-PT, Deputy Registrar, 6 February 2004.
1511.
ICTY, Magazine Balkan, Outreach Programme, View from The Hague, ‘On Communication Restrictions for Milošević and Šešelj’, 21 January 2004.
1512.
ICTY, Decision, Prosecutor v. Šešelj, Case No. IT-03-67-PT, Deputy Registrar, 6 February 2004.
1513.
ICTY, Decision, Prosecutor v. Šešelj, Case No. IT-03-67-PT, Deputy Registrar, 9 March 2004.
1514.
ICTY, Decision, Prosecutor v. Šešelj, Case No. IT-03-67-PT, Registrar, 8 April 2004. The Registrar took note of the fact that ‘on 6 April 2004, when the Commanding Officer of the Detention Unit inquired as to the Accused’s position with regard to the measures concerning his communication privileges at the Detention Unit, the response of the Accused indicated an uncooperative disposition with regard to the said measures and the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or otherwise Detained on the Authority of the Tribunal ("Rules of Detention"’.
1515.
Ibid.
1516.
De Jonge 2010a, p. 939.
1517.
ICTY, Decision, Prosecutor v. Milošević, Case No. IT-02-54, Deputy Registrar, 6 February 2004.
1518.
Id., disposition, sub (v).
1519.
ICTY, Decision, Prosecutor v. Šešelj, Case No. IT-03-67-PT, 7 May 2004.
1520.
Ibid.
1521.
Ibid.
1522.
Ibid.
1523.
ICTY, Decision, Prosecutor v. Šešelj, Case No. IT-03-67-PT, Deputy Registrar, 9 June 2004.
1524.
ICTY, Magazine Balkan, Outreach Programme, View from The Hague, ‘On Communication Restrictions for Milošević and Šešelj’, 21 January 2004.
1525.
Ibid.
1526.
ICTY, Decision on Appeal against Decisions of the Registry of 20 August 2004 and 30 January 2006, Prosecutor v. Šešelj, Case No. IT-03-67-PT, President, 11 April 2006, para 1.
1527.
Id., para 4.
1528.
Id., para 5.
1529.
Ibid.
1530.
Id., para 6.
1531.
Ibid.
1532.
Ibid.
1533.
Id., para 7.
1534.
ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.3.
1535.
See ICTY, Report to the President Death of Slobodan Milošević, Judge Kevin Parker Vice-President, 30 May 2006, para 3, 39, 80 and ICTY, Press Release “Update from the President on the Death of Slobodan Milošević”, FP/MOW/1056, The Hague, 17 March 2006.
1536.
ICTY, Weekly Press Briefing, 11 July 2001.
1537.
Ibid.
1538.
ICTY, Press Release, MH/MO/PA284e, The Hague, 25 September 2006. The Media Office further stated that ‘[p]hotographs accompanying the article are said by the newspaper to show the cell of Ante Gotovina. This claim is entirely bogus. The newspaper boldly asserts “Exclusive” at the head of the article. This implies that the photographs in question were exclusively obtained by Večernji list. Again, this is a fiction. The photographs carried by the newspaper are, in fact, images made available by the Tribunal to all media agencies and are carried on the Tribunal's website at http://www.un.org/icty/glance-e/index-du.htm’.
1539.
ICTY, Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia, U.N. Doc. A/52/375, S/1997/729, 18 September 1997, para 57.
1540.
ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 2.
1541.
Id., para 4. With respect to the allegation of possible ‘sensational reporting’, Karadžić argued that such ‘content-based objection is clearly prohibited in the United States and European jurisprudence and constitutes an unjustified and unlimited ban on contacts by an accused with the news media that flunks any proportionality test’; ICTY, Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, President, 18 November 2008, para 36.
1542.
ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 2, 5. Karadžić spoke about ‘the “hyperbole that accompanied his arrest”’ and said ‘that he was widely demonized by the media, including in statements by the Prosecutor of the Tribunal and former ambassador Holbrooke’. He argued that ‘“it is only fair” that he also be entitled to express his views’; id., para 8. See, also, ICTY, Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, President, 18 November 2008, para 3.
1543.
ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 6.
1544.
Id., para 11.
1545.
Id., para 13.
1546.
Id., para 16.
1547.
Id., para 18.
1548.
Id., para 19.
1549.
Id., para 20.
1550.
Id., para 14, 20.
1551.
Id., para 21.
1552.
Id., para 22.
1553.
Id., para 24.
1554.
ICTY, Request for Reversal of Limitations of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-05/18-PT, Vice-President, 20 March 2009, para 5.
1555.
Id., para 18.
1556.
ICTY, Registry Submission Regarding the Request for Reversal of Limitations of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-05/18-PT, Vice-President, 3 April 2009, para 17.
1557.
Id., para 18.
1558.
ICTY, Decision on Request for Reversal of limitations of Contact with Journalist, Prosecutor v. Karadžić, Case no. IT-95-5/18-PT, Vice-President, 21 April 2009, para 19.
1559.
Ibid.
1560.
Id., paras 20–21, 24.
1561.
Id., para 25.
1562.
ICTY, Registry Submission Regarding the Request for Reversal of limitations of Contact with Journalist, Prosecutor v. Karadžić, Case no. IT-95-5/18-PT, Vice-President, 3 April 2009, para 22. Emphasis added.
1563.
ICTY, Request for Reversal of Limitations of Contact with Journalist: Russia Today, Prosecutor v. Karadžić, Case No. IT-95-05/18-PT, President, 9 September 2009, para 1.
1564.
Id., para 23.
1565.
ICTY, Registry Submission Re Media Contact—Russia Today, Prosecutor v. Karadžić, Case No. IT-95-05/18-PT, President, 9 October 2009, para 10.
1566.
Id., para 12.
1567.
Id., para 14.
1568.
ICTY, Decision on Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist: Russia Today, Prosecutor v. Karadžić, Case No. IT-95-05/18-PT, Acting President, 6 November 2009, para 27.
1569.
Id., para 30.
1570.
Id., para 29.
1571.
ICTY, Decision on Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist: Le Monde, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Acting President, 28 October 2009, para 3.
1572.
Id., para 15.
1573.
Id., para 4.
1574.
Id., para 6, 8.
1575.
Id., para 9.
1576.
Id., para 16.
1577.
Id., para 17.
1578.
Id., para 18.
1579.
Id., para 19.
1580.
Id., para 20.
1581.
ICTY, Request for Reversal of Limitations of Contact with Journalist: Profil Magazine, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 17 August 2010, paras 1–5.
1582.
Id., para 20.
1583.
Id., para 21.
1584.
ICTY, Registrar’s Submission Pursuant to Rule 33(B) of the Rules Regarding Radovan Karadžić’s Request for Reversal of limitations of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 25 August 2010, para 18.
1585.
ICTY, Decision on Request for Reversal of Limitations of Contact with Journalist: Profil Magazine, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 11 October 2010, para 22.
1586.
Id., para 23.
1587.
De Jonge 2010a, p. 939.
1588.
ICTY, Decision on Request for Reversal of Limitations of Contact with Journalist: Profil Magazine, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 11 October 2010, para 14.
1589.
Id., para 23.
1590.
Ibid.
1591.
Id., para 24, Disposition.
1592.
ICTY, Press Release, JP/MOW/PA289e, The Hague, 22 November 2006.
1593.
Ibid.
1594.
ICTY, interviews conducted by the author with ICTY detainees, The Hague—Netherlands, 22 February 2011.
1595.
ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the ICTY UNDU, 17 June 2011.
1596.
ICTR, interviews conducted by the author with UNDF detainees, Arusha—Tanzania, May 2008.
1597.
Ibid.
1598.
Ibid.
1599.
Rule 42(A) of the SCSL Rules of Detention.
1600.
SCSL, Detention Operational Order No. 3:11, issued on 28 July 2004 by Barry Wallace, Chief of Detention. On file with the author.
1601.
SCSL, Press Release, Press and Public Affairs Office, 7 April 2003.
1602.
SCSL, Press Release, Press and Public Affairs Office, 27 May 2003.
1603.
Ibid.
1604.
Rule 28 of the SCSL RPE provides, as far as relevant, that ‘[a]fter consultation with the Judges concerned, the President shall designate for a given period such Judge as necessary to whom indictments, warrants and all other pre-trial matters not pertaining to a case already assigned to a Chamber, shall be transmitted for review’.
1605.
SCSL, Decision on Inter Partes Motion by Prosecution to Freeze the Account of the Accused Sam Hinga Norman at Union Trust Bank (SL) Limited or at any other Bank in Sierra Leone, Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-PT, Designated Judge Pursuant to Rule 28 of the Rules, 19 April 2004, para 17.
1606.
SCSL, Transcripts, Prosecutor v. Brima, Kamara and Kanu, Case No. SCSL-2004-16-T, T. Ch. II, 28 April 2005, 9:22 A.M., Open Session, p. 17, lines 8-14.
1607.
Id., p. 17, line 27 to p. 18, line 1.
1608.
Id., p. 18, lines 11–14.
1609.
Id., p. 18, lines 16–22.
1610.
Id., p. 18, line 22, to p. 19, line 2.
1611.
Id., p. 21, line 25, to p. 22, line 1.
1612.
Id., p. 22, lines 1–9. Rule 46(D) of the SCSL RPE provides that ‘[a] Judge or Chamber may also, with the approval of the President, communicate any misconduct of counsel to the professional body regulating the conduct of counsel in his State of admission’.
1613.
Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone, adopted on 14 May 2005, as amended on 13 May 2006.
1614.
SCSL, Decision Prohibiting Communications and Visits, Prosecutor v. Norman, Case No. SCSL-2003-08-PT, Registry, 20 January 2004.
1615.
Ibid.
1616.
Ibid.
1617.
SCSL, Decision Prohibiting Visits, Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-2004-14-T, Registrar, 8 November 2004.
1618.
Ibid.
1619.
Ibid.
1620.
Ibid.
1621.
Ibid.
1622.
SCSL, Transcripts, Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T, T. Ch. I, 23 July 2004, 3:03 P.M., Continued Trial, p. 9, lines 2–14.
1623.
Id., p. 14, lines 2–4.
1624.
Id., p. 20, lines 8–10.
1625.
SCSL, interviews conducted by the author with SCSL detainees, Freetown–Sierra Leone, October 2009.
1626.
Ibid.
1627.
Ibid.
1628.
Ibid.
1629.
Regulation 99(1)(d) of the ICC RoC. See, also, id., sub (e).
1630.
Speer 1976, pp. 182–183.
1631.
ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.3.
1632.
ECommHR, Bamber v. the United Kingdom, admissibility decision of 11 September 1997, Application No. 33742/96.
1633.
ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 16.
1634.
Id., para 18.
1635.
See, also, Bernstein 1998–1999, p. 139.
1636.
Feeney 1976–1977, p. 1365.
1637.
Bernstein 1998–1999, p. 140. See also the references cited there.
1638.
Ibid. See also the references cited there.
1639.
Livingstone 2000, p. 318.
1640.
ICTY, Decision on Radovan Karadžić’s Request for Reversal of Denial of Contact with Journalist, Prosecutor v. Karadžić, Case No. IT-95-5/18-PT, Vice-President, 12 February 2009, para 13.
1641.
Id., para 20.
1642.
ICTY, Decision on Request for Reversal of Limitations of Contact with Journalist: Profil Magazine, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, President, 11 October 2010, para 22.
1643.
Id., para 23.
1644.
ICTY, Decision, Prosecutor v. Šešelj, Case No. IT-03-67-PT, 7 May 2004.
1645.
See, this chapter, supra, footnote 193.
1646.
ICTY, Decision on Radovan Karadžić’s Request for Reversal of Limitations of Contact with Journalist: Le Monde, Prosecutor v. Karadžić, Case No. IT-95-5/18-T, Acting President, 28 October 2009, para 20.
1647.
Id., para 17. See, further, SCSL, Decision on Inter Partes Motion by Prosecution to Freeze the Account of the Accused Sam Hinga Norman at Union Trust Bank (SL) Limited or at any other Bank in Sierra Leone, Prosecutor v. Norman, Fofana and Kondewa, Case No. SCSL-04-14-PT, Designated Judge Pursuant to Rule 28 of the Rules, 19 April 2004, para 17 and Article 13 of the Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone, adopted on 14 May 2005, as amended on 13 May 2006.
1648.
Hass 1973–1974, pp. 402–403.

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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). Contact with the Outside World. 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_8

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