UvA-DARE (Digital Academic Repository) Prisoners of the international community: the legal position of persons detained at international criminal tribunals Abels, D. Publication date 2012 Link to publication Citation for published version (APA): Abels, D. (2012). Prisoners of the international community: the legal position of persons detained at international criminal tribunals. General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) Download date:28 Sep 2021 Chapter 8 Contact with the outside world 8.1 Introduction Both international and regional human rights law dictates that detained and imprisoned persons retain their fundamental rights.1 Incarceration, in itself, entails the loss of (the right to) personal liberty, but does not justify the violation of a detained person’s other basic rights.2 In its General Comment on Article 10, the HRC held that ‘[p]ersons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment’. 3 In the case of Fongum Gorji-Dinka v. Cameroon, the Committee stated that ‘persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty and that they must be treated in accordance with, inter alia, the Standard Minimum Rules for the Treatment of Prisoners (1957)’.4 Further, Principle 5 of the U.N. Basic Principles provides that ‘[e]xcept for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of human Rights, and, where the State concerned is a party, the 1 See, e.g., Piet Hein van Kempen, Positive obligations to ensure the human rights of prisoners, in: Peter J.P. Tak & Manon Jendly (eds.), Prison policy and prisoners’ rights, Wolf Legal Publishers, Nijmegen 2008, p. 21-44, at 23-25; Penal Reform International, Making Standards Work – an international handbook on good prison practice, Penal Reform International, London 1995, 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’; Johannes Feest, Imprisonment and prisoners’ work, Normalization or less eligibility?, Punishment Society 1, 1999, SAGE publications, p. 99-107, at 100. 3 HRC, General Comment 21, Article 10, U.N. Doc. HRI/GEN/1/Rev.1 at 33 (1994), of 10 April 1992, par. 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, par. 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, par. 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, par. 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, par. 8.5; HRC, HRC, Bradley McCallum v. South Africa, Communication 1818/2008, CCPR/C/100/D/1818/2008, views of 2 November 2010, par. 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, par. 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, par. 7.7. 665 International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants’. Prior to the ECtHR’s 1975 judgment in Golder v. the United Kingdom, the Commission and Court applied the so-called ‘inherent limitations doctrine’, according to which the deprivation of liberty automatically entails the loss of other rights. As a consequence, prisoners were excluded from the protections guaranteed under the ECHR. In Golder, the Court rejected the inherent limitations doctrine and assessed the impugned domestic restrictions on the right to correspondence on the basis of the limitations clause of Article 8(2).5 Since then, the Court has repeatedly affirmed that confined persons ‘“continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty”’.6 Moreover, according to Rule 2 of the EPR, ‘[p]ersons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody’. The official Commentary to the EPR states in respect of Rule 2 that ‘the undoubted loss of liberty that prisoners suffer should not lead to the assumption that prisoners automatically lose their political, civil, social, economic and cultural rights as well. Inevitably, rights of prisoners are restricted by their loss of liberty, but such further restrictions should be as few as possible (…) Any further restrictions should be specified in law and should be instituted only when they are essential for the good order, safety and security in prison. Restrictions of their rights that may be imposed should not derogate from the rules’. Also, Article 1 of the Kampala Declaration on Prison Conditions in Africa provides that ‘the human rights of prisoners should be safeguarded at all times’. Further, in the case of López-Álvarez v. Honduras, the I- ACtHR held in relation to Article 5 that ‘the restriction of the rights of the detainee, as a consequence of the deprivation of liberty or a collateral effect of it, must be rigorously limited; the restriction of a human right is only justified when it is absolutely necessary within the context of a democratic society’.7 In its 2007 Annual Report, the Commission reiterated in respect of the Venezuelan prison system that 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, par. 107; ECtHR, Hirst v. the United Kingdom (No. 2), judgment of 6 October 2005, Application No. 74025/01, par. 69. 7 I-ACtHR, López-Álvarez v. Honduras, judgment of 1 February 2006, par. 104. 666 ‘[i]n keeping with the jurisprudence constante of the system, the Commission must again assert that when the State deprives an individual of his freedom, it becomes the guarantor of that individual’s rights. The obligation it undertakes when incarcerating an individual is such that the institutions of the State and its agents must refrain from engaging in any acts that could violate the inmates’ fundamental rights. Both the institutions and agents of the State must endeavor, by every means possible, to ensure that a person deprived of his liberty is able to enjoy his other rights’.8 This Chapter focuses on the right of internationally detained persons to contact with the outside world, a right which finds protection in the prohibition of ill- treatment and such fundamental rights as those to family and private life, respect for correspondence and freedom of expression. Further, the detained persons’ right to contact with their counsel is, depending inter alia on the mode of communication and the stage and subject-matter of the proceedings, guaranteed by the rights to a fair trial, correspondence and access to a court to challenge the lawfulness of detention. The right to contact with the outside world is the only substantive right of internationally detained persons to specifically be examined in this research. The justification for examining this right lies in the working hypothesis employed throughout this research, i.e. the mere fact that the international criminal tribunals have in their legal frameworks, in accordance with existing international standards, recognised that detained persons retain certain rights, does not yet guarantee the effectiveness of such rights in the international context. The domestic pedigree of such international standards, which formed the blueprint for the tribunals’ own detention rules and regulations, may lead to unfortunate results when applied directly to the international context. The international detention situation differs significantly from the domestic one, especially as far as the possibilities for detained persons to stay in contact with family and friends are concerned. The latter usually live far away from the international detention facilities, which makes staying in touch with detained loved ones a costly and time-consuming activity. Another reason for looking closely at this right is that confined persons tend to regard separation from their families as the most distressing aspect of detention. Apart from relationships with relatives and friends, detainees’ contact with the outside world also concerns access to the media – 8 I-ACommHR, Annual Report of the Inter-American Commission on Human Rights 2007, OEA/Ser.L/V/II.130, Doc.