Skip to main content
SpringerLink
Log in
Book cover

Prisoners of the International Community pp 391–444Cite as

Discipline

  • Chapter
  • First Online:

  • 711 Accesses

Abstract

This chapter examines the tribunals’ detention facilities’ procedures for imposing disciplinary punishment. First, the principles underlying such systems and the standards such systems must comply with are set out. Following this, the disciplinary systems established at the various tribunals are described in detail. In the evaluation paragraph, it is argued inter alia that the recommendation made in Chap. 5 to establish an external adjudicator’s office also applies to the tribunals’ disciplinary procedures. This recommendation is made on the basis of (i) the right to a fair trial (and the corresponding ECtHR case law) and the right to an effective remedy; (ii) the advantages of disciplinary decisions being made by someone who is not part of the institution’s management and (iii) the particularities of the international context.

This is a preview of subscription content, log in via an institution.

Chapter
USD   29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD   129.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Hardcover Book
USD   169.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Learn about institutional subscriptions

Notes

  1. 1.

    Robertson 1994, p. 172.

  2. 2.

    See, in more detail, Chap. 5.

  3. 3.

    Harvard Center for Criminal Justice (Dauber et al.) 1972, p. 223; Penal Reform International 2001, p. 37, para 31.

  4. 4.

    Turner 1971, p. 493.

  5. 5.

    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 196.

  6. 6.

    Livingstone et al. 2008, p. 378. See, in a similar vein, Van Zyl Smit and Snacken 2009, pp. 42–43; Turner 1971, p. 495; Penal Reform International 2001, p. 30, para 7.

  7. 7.

    Livingstone et al. 2008, p. 378. See, in a similar vein, Van Zyl Smit and Snacken 2009, pp. 42–43; Turner 1971, p. 495; Penal Reform International 2001, p. 30, para 7. See, also, supra, p. 272, footnote 27.

  8. 8.

    Livingstone et al. 2008, p. 378.

  9. 9.

    Ibid.

  10. 10.

    Harvard Center for Criminal Justice (Dauber et al.) 1972, pp. 210, 213.

  11. 11.

    Penal Reform International 2001, p. 52, para 85.

  12. 12.

    Manson 2001, p. 138.

  13. 13.

    Harvard Center for Criminal Justice (Dauber et al.) 1972, p. 204.

  14. 14.

    Peters 1972, pp. 17–20.

  15. 15.

    See, e.g., Article 51(5) of the Dutch Penitentiary Principles Act, which holds that no punishment can be imposed if a detainee cannot be held accountable for the alleged acts.

  16. 16.

    In Spain, it has been recognised that these principles ‘should inspire the disciplinary regime’; see Luis de la Cuesta and Blanco 2001, p. 619.

  17. 17.

    Note and comment 1963, p. 537. See, also, Penal Reform International 2001, p. 46, para 63.

  18. 18.

    Henham 2007, p. 458.

  19. 19.

    Von Hirsch and Ashworth 2005, p. 138.

  20. 20.

    Ibid.

  21. 21.

    Kelk 1978, p. 246.

  22. 22.

    Jones and Rhine 1985, p. 96; Penal Reform International 2001, pp. 38–39, paras 36 and 39.

  23. 23.

    Van Zyl Smit and Snacken 2009, p. 299. See, in a similar vein, Dünkel and Van Zyl Smit 2001, p. 834.

  24. 24.

    See, in more detail, Robertson 1994; Jones and Rhine 1985, p. 96.

  25. 25.

    De Jonge and Cremers 2008, p. 243.

  26. 26.

    Storgaard 2001, p. 197.

  27. 27.

    Ibid.

  28. 28.

    See, e.g., Nagy 2001, p. 364; Uss and Pergataia 2001, p. 576; Harvard Center for Criminal Justice (Dauber et al.) 1972, pp. 212, 223; USA Supreme Court, Wolff, Warden et al . v. McDonnell, 418 U.S. 539 (1973), pp. 562–563; Jacobson 1977–1978, p. 139; Fox 1958–1959, p. 321.

  29. 29.

    Fox 1958–1959, p. 325.

  30. 30.

    See Jones and Rhine 1985, p. 61, referring to USA Supreme Court, Wolff, Warden et al . v. McDonnell, 418 U.S. 539 (1973).

  31. 31.

    See, supra, p. 254.

  32. 32.

    Jacobson 1977–1978, pp. 123–124.

  33. 33.

    Fox 1958–1959, p. 321. The same can be said about some of the tribunals’ practice on early release. See, for instance, ICTY, Order of the President on the Application for the Early Release of Milan Simić, Case No. IT-95/2, President, 27 October 2003 and Abels 2008, p. 798.

  34. 34.

    Kelk 2008, p. 151; Penal Reform International 2001; Kelk 1978, p. 245.

  35. 35.

    CoE, Recommendation (2003)23, on the management by prison administrations of life sentence and other long-term prisoners, adopted by the Committee of Ministers on 9 October 2003 at the 855th meeting of the Ministers’ Deputies, para 18.a.

  36. 36.

    Van Zyl Smit and Snacken 2009, pp. 45–47.

  37. 37.

    Huff 1940–1941. p. 576.

  38. 38.

    Gratz et al. 2001, p. 19.

  39. 39.

    Ibid.

  40. 40.

    Ibid.

  41. 41.

    Harvard Center for Criminal Justice (Dauber et al.) 1972, p. 227.

  42. 42.

    Fox 1958–1959, p. 322. Footnote omitted.

  43. 43.

    Id., p. 323.

  44. 44.

    Id., p. 324. Emphasis added.

  45. 45.

    HRC, General Comment 32, Article 14, U.N. Doc. CCPR/C/GC/32, 23 August 2007, para 15. Emphasis added.

  46. 46.

    I-ACtHR, Baena-Ricardo et al . v. Panama, judgment of 2 February 2001, para 129.

  47. 47.

    ECtHR, Engel and others v. the Netherlands, judgment of 8 June 1976, Application Nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, para 81.

  48. 48.

    Id., para 82. See, also, ECtHR, Weber v. Switzerland, judgment of 22 May 1990, Application No. 11034/84, paras 29–35; ECtHR, Demicoli v. Malta, judgment of 27 August 1991, Application No. 13057/87, paras 30–34; ECtHR, Garyfallou Aebe v. Greece, judgment of 24 September 1997, Application No. 93/1996/712/909, para 32; ECtHR, Lauko v. Slovakia, judgment of 2 September 1998, Application No. 4/1998/907/1119, paras 56–57; ECtHR, Whitfield and others v. the United Kingdom, judgment of 12 April 2005, Application Nos. 46387/99, 48906/99, 57410/00 and 57419/00, para 39; ECtHR, Bell v. the United Kingdom, judgment of 16 January 2007, Application No. 41534/98, para 33; ECtHR, Young v. the United Kingdom, judgment of 16 January 2007, Application No. 60682/00, paras 31–34.

  49. 49.

    ECtHR, Lauko v. Slovakia, judgment of 2 September 1998, Application No. 4/1998/907/1119, para 57; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 15 July 2002, Application Nos. 39665/98 and 40086/98, para 58l; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, para 86.

  50. 50.

    See also ECtHR, Young v. the United Kingdom, judgment of 16 January 2007, Application No. 60682/00, paras 31–39; and ECtHR, Stitic v. Croatia, judgment of 8 November 2007, Application No. 29660/03, paras 47–63.

  51. 51.

    ECtHR, Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Application Nos. 7819/77; 7878/77, para 69.

  52. 52.

    Ibid; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, para 85.

  53. 53.

    ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 15 July 2002, Application Nos. 39665/98 and 40086/98, para 62; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, para 91.

  54. 54.

    ECtHR, Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Application Nos. 7819/77; 7878/77, para 71; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, para 101.

  55. 55.

    ECtHR, Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Application Nos. 7819/77; 7878/77, para 71.

  56. 56.

    ECtHR, Lauko v. Slovakia, judgment of 2 September 1998, Application No. 4/1998/907/1119, para 58; ECtHR, Young v. the United Kingdom, judgment of 16 January 2007, Application No. 60682/00, para 35; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, para 103.

  57. 57.

    ECtHR, Lauko v. Slovakia, judgment of 2 September 1998, Application No. 4/1998/907/1119, para 58; ECtHR, Young v. the United Kingdom, judgment of 16 January 2007, Application No. 60682/00, para 35; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, para 102.

  58. 58.

    ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 15 July 2002, Application Nos. 39665/98 and 40086/98, paras 68–69.

  59. 59.

    ECtHR, Stitic v. Croatia, judgment of 8 November 2007, Application No. 29660/03, paras 57–60.

  60. 60.

    ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 15 July 2002, Application Nos. 39665/98 and 40086/98, para 87; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, para 120.

  61. 61.

    ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 15 July 2002, Application Nos. 39665/98 and 40086/98, para 97; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, para 129.

  62. 62.

    ECtHR, Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Application Nos. 7819/77; 7878/77, para 73.

  63. 63.

    ECtHR, Young v. the United Kingdom, judgment of 16 January 2007, Application No. 60682/00, para 37; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 15 July 2002, Application Nos. 39665/98 and 40086/98, para 95.

  64. 64.

    ECtHR, Young v. the United Kingdom, judgment of 16 January 2007, Application No. 60682/00, para 38.

  65. 65.

    ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 15 July 2002, Application Nos. 39665/98 and 40086/98, para 97.

  66. 66.

    ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, para 88.

  67. 67.

    ECtHR, Stitic v. Croatia, judgment of 8 November 2007, Application No. 29660/03, para 56.

  68. 68.

    Id., para 61.

  69. 69.

    Van Zyl Smit and Snacken 2009, p. 303.

  70. 70.

    ECtHR, Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Application Nos. 7819/77; 7878/77, paras 91–92.

  71. 71.

    Id., para 98.

  72. 72.

    Id., para 99. See, also, ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 15 July 2002, Application Nos. 39665/98 and 40086/98, paras 103–106; ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, paras 131–134; ECtHR, Whitfield and others v. the United Kingdom, judgment of 12 April 2005, Application Nos. 46387/99, 48906/99, 57410/00 and 57419/00, paras 47–48. See, also, ECtHR, Bell v. the United Kingdom, judgment of 16 January 2007, Application No. 41534/98, paras 51–54 and ECtHR, Young v. the United Kingdom, judgment of 16 January 2007, Application No. 60682/00, paras 43–44.

  73. 73.

    ECtHR, Weber v. Switzerland, judgment of 22 May 1990, Application No. 11034/84, para 39.

  74. 74.

    ECtHR, Garyfallou Aebe v. Greece, judgment of 24 September 1997, Application No. 93/1996/712/909, para 39.

  75. 75.

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

  76. 76.

    Ibid.

  77. 77.

    Id., para 45. See, also, ECtHR, Bell v. the United Kingdom, judgment of 16 January 2007, Application No. 41534/98, paras 51–54 and ECtHR, Young v. the United Kingdom, judgment of 16 January 2007, Application No. 60682/00, paras 43–44.

  78. 78.

    ECtHR, Onoufriou v. Cyprus, judgment of 7 January 2010, Application No. 24407/04, para 69. See, also, Murdoch 2006, pp. 255–256.

  79. 79.

    ECtHR, Onoufriou v. Cyprus, judgment of 7 January 2010, Application No. 24407/04, para 69.

  80. 80.

    Id., para 70.

  81. 81.

    Id., para 73.

  82. 82.

    Id., para 72.

  83. 83.

    See, id., para 78 and the references cited there.

  84. 84.

    Id., para 72.

  85. 85.

    ECtHR, Yankov v. Bulgaria, judgment of 11 December 2003, Application No. 39084/97, para 108.

  86. 86.

    Id., paras 112–113.

  87. 87.

    Id., para 114. See, in more detail, supra, Chap. 2.

  88. 88.

    ECtHR, Onoufriou v. Cyprus, judgment of 7 January 2010, Application No. 24407/04, paras 91–97.

  89. 89.

    ECtHR, Sergey Volosyuk v. Ukraine, judgment of 12 March 2009, Application No. 1291/03, para 88.

  90. 90.

    Ibid.

  91. 91.

    Id., paras 91–92.

  92. 92.

    See, supra, Chap. 5.

  93. 93.

    Ibid.

  94. 94.

    Office of the United Nations High Commissioner for Human Rights 2005, p. 91.

  95. 95.

    Id., p. 93.

  96. 96.

    Turner 1971, p. 499.

  97. 97.

    Van Zyl Smit 2001, p. 600.

  98. 98.

    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, para 200.

  99. 99.

    See, also, HRC, General Comment 20, Article 7, U.N. Doc. HRI/GEN/1/Rev.6 at 151 (2003), 10 March 1992, para 5 Footnote added.

  100. 100.

    Rule 32 of the SMR.

  101. 101.

    Office of the United Nations High Commissioner for Human Rights 2005, p. 93.

  102. 102.

    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, paras 204, 301. 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 Maldives, U.N. Doc. CAT/OP/MDV/1, 26 February 2009, paras 193, 330–331; 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 171, 314; 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 156, 283.

  103. 103.

    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, paras 241, 310. See, also, 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 194, 324; 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 200, 303.

  104. 104.

    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, paras 241, 310; 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 200, 303.

  105. 105.

    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, paras 29, 269.

  106. 106.

    Id., paras 225, 343.

  107. 107.

    Id., paras 196, 331.

  108. 108.

    Id., paras 198, 332.

  109. 109.

    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 125.

  110. 110.

    Id., para 127.

  111. 111.

    CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 56.

  112. 112.

    Rule 63 of the EPR.

  113. 113.

    Rule 62 of the EPR.

  114. 114.

    CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 58.

  115. 115.

    Id., sub Rule 60.

  116. 116.

    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, in a similar vein, Dünkel and Van Zyl Smit 2001, p. 835.

  117. 117.

    CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 58. See, also, Von Hofer and Marvin 2001, p. 640. See, in a similar vein, Dünkel and Van Zyl Smit 2001, p. 835.

  118. 118.

    In a similar vein, see 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 207.

  119. 119.

    In a similar vein, see 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 241; 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 196.

  120. 120.

    CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 60.

  121. 121.

    See, in more detail, De Lange 2008. See, also, Murdoch 2006, p. 250.

  122. 122.

    CPT, The CPT Standards—“Substantive” sections of the CPT’s General Reports, CPT/Inf/E (2002) 1—Rev. 2006, para 55; 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 55.

  123. 123.

    CPT, Report to the Hungarian Government on the visit to Hungary carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 5 to 16 December 1999, CPT/Inf (2001) 2, 29 March 2001, para 128.

  124. 124.

    Ibid.

  125. 125.

    CPT, The CPT Standards—“Substantive” sections of the CPT’s General Reports, CPT/Inf/E (2002) 1—Rev. 2006, para 55.

  126. 126.

    CPT, Report to the Turkish Government on the visit to Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 5 to 17 October 1997, CPT/Inf (99) 2, 23 February 1999, para 162.

  127. 127.

    CPT, Report to the Government of Bosnia and Herzegovina on the visit to 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, 21 December 2004, para 110.

  128. 128.

    CPT, Report to the Estonian Government on the visit to Estonia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 23 to 30 September 2003, CPT/Inf (2005) 6, 27 April 2005, para 76.

  129. 129.

    CPT, Report to the Government of Greece on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 25 May to 6 June 1997, CPT/Inf (2001) 18 [Part 1], 13 September 2001, para 176.

  130. 130.

    CPT, Report to the Government of Cyprus on the visit to Cyprus carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 22 to 30 May 2000, CPT/Inf (2003) 1, 15 January 2003, para 40.

  131. 131.

    CPT, Rapport au Conseil fédéral Suisse relatif à la visite du Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT) effectuée en Suisse du 21 au 29 juillet 1991, CPT/Inf (93) 3, 27 janvier 1993, para 84.

  132. 132.

    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, 19 July 1993, para 159.

  133. 133.

    CPT, The CPT Standards—“Substantive” sections of the CPT’s General Reports, CPT/Inf/E (2002) 1—Rev. 2006, para 56; Murdoch 2006, p. 250.

  134. 134.

    CPT, The CPT Standards—“Substantive” sections of the CPT’s General Reports, CPT/Inf/E (2002) 1—Rev. 2006, para 56.

  135. 135.

    ICTY, United Nations Detention Unit Regulations for the Establishment of a Disciplinary Procedure for Detainees, IT/97, issued by the Registrar, April 1995.

  136. 136.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the ICTY UNDU, The Hague—Netherlands, 17 June 2011.

  137. 137.

    Regulation 6.

  138. 138.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the ICTY UNDU, The Hague—Netherlands, 17 June 2011.

  139. 139.

    Regulation 6.

  140. 140.

    ICTY, Transcripts, Prosecutor v. Rajić, Case No. IT-95-12-PT, T. Ch., 31 August 2004, Status Conference, p. 62, lines 17–18.

  141. 141.

    Regulation 8.

  142. 142.

    Regulation 9.

  143. 143.

    Regulation 10.

  144. 144.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the ICTY UNDU, The Hague—Netherlands, 17 June 2011.

  145. 145.

    Regulation 12.

  146. 146.

    Rule 46(B).

  147. 147.

    Rule 47.

  148. 148.

    Rule 48.

  149. 149.

    Rule 49.

  150. 150.

    ICTR, interviews conducted by the author with ICTR staff members and detained persons, Arusha-Tanzania, May 2008; SCSL, interviews conducted by the author with SCSL staff members and detained persons, Freetown-Sierra Leone, October 2009.

  151. 151.

    ICTY, Independent Audit of the Detention Unit at the International Criminal Tribunal for the Former Yugoslavia, 4 May 2006, para 2.7.2.

  152. 152.

    Ibid.

  153. 153.

    Ibid.

  154. 154.

    Ibid.

  155. 155.

    ICTY, interview conducted by the author with David Kennedy, Commanding Officer of the ICTY UNDU, The Hague—Netherlands, 17 June 2011.

  156. 156.

    See, e.g., ICTY, Judgement, Prosecutor v. Blaškić, Case No. IT-95-14-A, A. Ch., 29 July 2004, para 696; ICTY, Sentencing Judgement, Prosecutor v. Jokić, Case No. IT-01-42/1-S, T. Ch. I, 18 March 2004, para 100; ICTY, Sentencing Judgement, Prosecutor v. Nikolić, Case No. IT-02-60/1-S, T. Ch. I, 2 December 2003, para 268; ICTY, Judgement, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, A. Ch., 17 December 2004, para 1090; ICTY, Sentencing Judgement, Prosecutor v. Zelenović, Case No. IT-96-23/2-S, T. Ch. I, 4 April 2007, para 56.

  157. 157.

    See, e.g., ICTY, Public Redacted Version of Decision of President on Application for Pardon or Commutation of Sentence of Dragan Jokić of 8 December 2009, Prosecutor v. Jokić and Contempt Proceedings against Dragan Jokić, Case No. IT-02-60-ES and IT-05-88-R77.1-ES, President, 13 January 2010, para 15; ICTY, Decision of President on Early Release of Momcilo Krajisik [sic], Prosecutor v. Momcilo Krajišnik, Case No. IT-00-39-ES, President, 26 July 2010, para 24. See, also, Article 3(b) of the ICTY, Practice Direction on the Procedure for the Determination of Applications for Pardon, Commutation of Sentence, and Early Release of Persons Convicted by the International Tribunal, IT/146/Rev.2, 1 September 2009.

  158. 158.

    ICTY, Decision of the President on the Application for pardon or Commutation of Sentence of Pavle Strugar, Prosecutor v. Strugar, Case No. IT-01-42-ES, President, 16 January 2009, para 10. Footnote omitted.

  159. 159.

    Paragraph 3 of the document ‘Disciplinary Measures at the UNDF’, formulated pursuant to Rule 56 of the Provisional Rules covering the detention of persons awaiting trial or appeal before the Tribunal or otherwise detained on the authority of the Tribunal, providing guidelines regarding the disciplinary measures in operation at the UNDF. The document is on file with the author.

  160. 160.

    Regulation 1 of the Regulations for the Establishment of a Disciplinary Procedure for Detainees, issued by the Commanding Officer and the Registrar pursuant to Rules 36–37 of the Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or otherwise Detained on the Authority of the Tribunal, June 1996. The Regulations are on file with the author.

  161. 161.

    Hereafter in this subparagraph referred to as ‘the Document’ (on file with the author). Paragraph 5 of the Document provides that ‘[t]he following sanctions may be imposed:

    • confiscation of the prohibited article;

    • removal or reduction in the detainee’s privileges or use of his personal effects;

    • cancellation of visits and correspondence for a period of not more than two weeks;

    • written or oral warning;

    • a written notice that a sanction will be introduced if the violation occurs within two weeks of the first act;

    • isolation, under Rules 43 and 47 of the Provisional Rules covering detention’.

    See, also, Regulation 7 of the Regulations for the Establishment of a Disciplinary Procedure for Detainees. It is stipulated in para 6 that ‘[t]he use of Corporal punishment, punishment by placing in a dark cell, and all other cruel, inhumane or degrading punishments are completely prohibited and shall not be utilised’.

  162. 162.

    Paragraph 2 of Document provides that ‘[t]he following constitute a breach of discipline:

    1. (a)

      Refusal to follow an order or instruction given by a member of staff at the UNDF;

    2. (b)

      Verbal abuse against a member of staff at the UNDF, another detainee or any authorised visitor to the detention facility;

    3. (c)

      Violent or aggressive behaviour towards a member of staff, another detainee or any authorised visitor to the UNDF;

    4. (d)

      Possession of any contraband object or substance;

    5. (e)

      Repetition of a breach of discipline despite an oral or written warning;

    6. (f)

      Any behaviour which poses a threat to the good order and discipline of the Detention Facility’.

    See, also, Regulation 2 of the Regulations for the Establishment of a Disciplinary Procedure for Detainees.

  163. 163.

    Hereafter in this subparagraph referred to as ‘Regulations’ (on file with the author). See ICTR, The President’s Decision on Ferdinand Nahimana’s Appeal Against the Disciplinary Measures Imposed on Him by the UNDF, Prosecutor v. Nahimana, Case No. ICTR-96-11-T, President, 10 February 2003, para 3.

  164. 164.

    Paragraph 3 of the Document.

  165. 165.

    Regulation 7.

  166. 166.

    See, also, Regulation 6.

  167. 167.

    ICTR, interview conducted by the author with UNDF authorities, Arusha-Tanzania, May 2008.

  168. 168.

    Regulation 5 of the Regulations.

  169. 169.

    Paragraph 7 of the Document.

  170. 170.

    Paragraph 8 of the Document.

  171. 171.

    CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 60.

  172. 172.

    Paragraph 4 of the Document. Regulation 6 of the Regulations provides that ‘the alleged incident of misconduct shall be explained to the detainee by the Commanding Officer, through an interpreter if necessary, and the detainee shall be given the opportunity to explain his behaviour’. Emphasis added.

  173. 173.

    See, also, Regulation 8 of the Regulations.

  174. 174.

    See Rule 36(d) of the Rules of Detention and para 10 of the Document.

  175. 175.

    See, also, Regulation 9 of the Regulations.

  176. 176.

    ICTR, The President’s Decision on Ferdinand Nahimana’s Appeal Against the Disciplinary Measures Imposed on Him by the UNDF, Prosecutor v. Nahimana, Case No. ICTR-96-11-T, President, 10 February 2003. See, also, Regulation 9 of the Regulations.

  177. 177.

    See, e.g., ICTR, Defence Motion for Admission of the Written Declaration Made by the Commanding Officer of the United Nations Detention Facility in Lieu of Oral Statement (Rule 92bis (A) and (B)), Prosecutor v. Bisengimana, Case No. ICTR-00-60-I, T. Ch. II, 20 January 2006.

  178. 178.

    ICTR, interview conducted by the author with UNDF authorities, Arusha-Tanzania, May 2008.

  179. 179.

    See, also, ICTR, The President’s Decision on Ferdinand Nahimana’s Appeal Against the Disciplinary Measures Imposed on Him by the UNDF, Prosecutor v. Nahimana, Case No. ICTR-96-11-T, President, 10 February 2003.

  180. 180.

    Ibid.

  181. 181.

    Id., para 1.

  182. 182.

    Regulation 10 of the Regulations.

  183. 183.

    ICTR, interview conducted by the author with UNDF authorities, Arusha-Tanzania, May 2008.

  184. 184.

    ICTR, interviews conducted by the author with UNDF detainees, Arusha-Tanzania, May 2008; ICTR, interview conducted by the author with UNDF authorities, Arusha-Tanzania, May 2008.

  185. 185.

    See ICTR, The President’s Decision on Ferdinand Nahimana’s Appeal Against the Disciplinary Measures Imposed on Him by the UNDF, Prosecutor v. Nahimana, Case No. ICTR-96-11-T, President, 10 February 2003.

  186. 186.

    ICTR, interview conducted by the author with a senior staff member of ICTR Office of the Registrar, Arusha-Tanzania, May 2008.

  187. 187.

    ICTR, The President’s Decision on Ferdinand Nahimana’s Appeal Against the Disciplinary Measures Imposed on Him by the UNDF, Prosecutor v. Nahimana, Case No. ICTR-96-11-T, President, 10 February 2003, para 4.

  188. 188.

    Ibid.

  189. 189.

    Id., para 6.

  190. 190.

    Paragraph 13 of the Document provides that ‘[t]he President of the Tribunal will inform the detainee of his decision, in writing in a language which he understands, within 3 days of making the said decision’.

  191. 191.

    Paragraph 13 of the Document stipulates that ‘[t]he President may order the restitution of confiscated items, the restoration of privileges, the annulment of any warning, conditional warning, or isolation’.

  192. 192.

    ICTR, interview conducted by the author with UNDF authorities, Arusha-Tanzania, May 2008.

  193. 193.

    Ibid; ICTR, interview conducted by the author with staff members of the Office of the Registrar, Arusha-Tanzania, May 2008.

  194. 194.

    Ibid.

  195. 195.

    See, also, Regulation 11 of the Regulations.

  196. 196.

    ICTR, interview conducted by the author with UNDF authorities, Arusha-Tanzania, May 2008.

  197. 197.

    ICTR, Minutes of the first meeting in the Detention Committee of 6 August 1996, 19 August 1996. Letter from Frederik Harhoff, Call for 2nd Meeting in detention Committee, Wednesday 21 August 1996, ICTR/JUD 11-2, 19 August 1996.

  198. 198.

    ICTR, The President’s Decision on Ferdinand Nahimana’s Appeal Against the Disciplinary Measures Imposed on Him by the UNDF, Prosecutor v. Nahimana, Case No. ICTR-96-11-T, President, 10 February 2003.

  199. 199.

    Rule 58 is located in the Section of the Rules of Detention entitled ‘Rights of Detainees’.

  200. 200.

    Rule 25(B).

  201. 201.

    Rule 25(D).

  202. 202.

    SCSL, Detention Operational Order No. 12:1, issued on 14 October 2004 by Barry Wallace, Chief of Detention.

  203. 203.

    Rule 25(D).

  204. 204.

    Rule 25(D).

  205. 205.

    SCSL, Detention Operational Order No. 12:1, issued on 14 October 2004 by Barry Wallace, Chief of Detention. Document on file with the author.

  206. 206.

    Rule 31(A).

  207. 207.

    Rule 31(B).

  208. 208.

    SCSL, Detention Operational Order No. 12:1, issued on 14 October 2004 by Barry Wallace, Chief of Detention. Document on file with the author.

  209. 209.

    Rule 30(A).

  210. 210.

    Rule 26(D).

  211. 211.

    Rule 32(A).

  212. 212.

    Hereafter referred to as ‘the Regulations’. Document on file with the author. One paragraph of the Regulations concerns supervision more in general and holds that where, in principle, the supervision of detainees may be carried out by officers of either sex, ‘in circumstances where privacy would be expected’ an officer of the same sex will supervise a detainee. See Regulations 2.1 and 2.2. A situation ‘where privacy would be expected’ is the full body search of detainees. Contrary to the regulations governing rub-down searches (SCSL, Detention Operational Order No. 4:7, issued on 30 July 2004 by Barry Wallace, Chief of Detention (document on file with the author)), the Operational Order on the full search dictates that ‘[s]earch staff must be of the same sex as the detainee being searched’ (SCSL, Detention Operational Order No. 4:9, issued on 10 August 2004 by Barry Wallace, Chief of Detention. Emphasis in the original. (Document on file with the author.)) See, on the full search, SCSL, Detention Operational Order No. 4:8; issued on 10 August 2004 by Barry Wallace, Chief of Detention. (Document on file with the author.) See also Rule 32 of the STL Rules of Detention.

  213. 213.

    Regulation 1.2.

  214. 214.

    SCSL, Discipline and Control, para 3 (Laying of disciplinary charges), Regulation 1. Document on file with the author.

  215. 215.

    Regulation 3.2. The United States Supreme Court in the case of Wolff et al . v. McDonnell, held that ‘written notice of the charges must be given to the disciplinary-action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense. At least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance before the Adjustment Committee’; USA Supreme Court, Wolff, Warden et al . v. McDonnell, 418 U.S. 539 (1973), p. 564.

  216. 216.

    Regulation 3.3.

  217. 217.

    SCSL, interview conducted by the author with the SCSL detention authorities, Freetown—Sierra Leone, 19 October 2009.

  218. 218.

    Ibid.

  219. 219.

    Ibid.

  220. 220.

    Regulation 4.2.

  221. 221.

    Regulation 5.1.

  222. 222.

    SCSL, Detention Operational Order No. 11:14, issued on 14 October 2004 by Barry Wallace, Chief of Detention. Document on file with the author.

  223. 223.

    SCSL, Detention Operational Order No. 12:2, issued on 14 October 2004 by Barry Wallace, Chief of Detention. Document on file with the author.

  224. 224.

    SCSL, Detention Operational Order No. 12:2, issued on 14 October 2004 by Barry Wallace, Chief of Detention. Document on file with the author.

  225. 225.

    Regulation 4.4.

  226. 226.

    SCSL, interview conducted by the author with the SCSL detention authorities, Freetown—Sierra Leone, 19 October 2009.

  227. 227.

    It holds that ‘a detainee shall be guilty of an offence against discipline if he’: (1) ‘assaults an officer or other member of staff’; (2) ‘commits an assault causing injury to any person including other detainees’; (3) ‘commits any other assault’; (4) ‘disobeys any lawful order’; (5) ‘disobeys or fails to comply with any rule or regulation applying to him’; (6) ‘refuses to work when required to do so, or intentionally fails to work properly’; (7) ‘fights with any person or other detainee’; (8) ‘is disrespectful to any person or uses threatening, abusive, or insulting words or behaviour’; (9) ‘commits an indecent or obscene act’; (10) ‘endangers the health or personal safety of any person or persons, including detainees, through intentional or reckless conduct’; (11) ‘intentionally or recklessly sets fire to any part of the unit or any property, whether or not his own, or, destroys or damages any part of the unit or other property not being his own’; (12) ‘has in his possession any unauthorised article, or a greater quantity of any article that he is authorised to have’; (13) ‘sells or delivers to or receives from any person any unauthorised article, or sells, or without permission, delivers to any person any article which he is allowed to have only for his own use’; (14) ‘takes improperly any article belonging to another person or to another detainee’; (15) ‘prepares, manufactures, consumes, inhales or administers to himself or any other person, with or without their consent, any intoxicating substance or drug, or buys, sells, passes or possesses any such item’; (16) ‘intentionally obstructs an officer in the execution of his duty or any other person going about his authorised duties within the unit’; (17) ‘bribes or attempts to influence any officer or other person going about their authorised duties within the unit’; (18) ‘denies access to any part of the unit to any officer or other authorised person’; (19) ‘detains any person against his will’; (20) ‘absents himself from any place where he is required to be or is present at any place where he is not authorised to be’; (21) ‘mutinies or commits any act of collective indiscipline’; (22) ‘escapes from detention or legal custody’; (23) ‘in any other way offends against good order and discipline’; or (24) ‘attempts to commit, incites another detainee to commit, or assists another detainee to commit or attempt to commit any of the foregoing offences’.

  228. 228.

    Document on file with the author.

  229. 229.

    Office of the United Nations High Commissioner for Human Rights 2005, p. 93.

  230. 230.

    Ibid.

  231. 231.

    SCSL, interview conducted by the author with the SCSL detention authorities, Freetown—Sierra Leone, 19 October 2009.

  232. 232.

    Ibid.

  233. 233.

    Emphasis in the original.

  234. 234.

    SCSL, Detention Operational Order No. 12:1, issued on 14 October 2004 by Barry Wallace, Chief of Detention. Document on file with the author.

  235. 235.

    SCSL, Detention Operational Order No. 12:3, issued on 10 August 2003 by Terry Jackson, Chief of Detention. Document on file with the author.

  236. 236.

    Ibid.

  237. 237.

    Ibid.

  238. 238.

    Office of the United Nations High Commissioner for Human Rights 2005, p. 122. See, in a similar vein, Penal Reform International 2001, pp. 102, 106.

  239. 239.

    Regulation 9.1.

  240. 240.

    Regulation 9.3.

  241. 241.

    See, supra, Chap. 5.

  242. 242.

    Rule 32.

  243. 243.

    The offences are: ‘(i) Failure to obey an order or instruction given by a member of the staff of the Detention Facility; (ii) Violent behaviour or aggression towards a member of staff of the Detention Facility, another Detainee or any visitor to the Detention Facility; (iii) Possession of any prohibited item or substance, as set out in Rule 11(A); (iv) Repeated misconduct after a warning has been given pursuant to Rule 38(A)(c); (v) Escape or attempted escape from custody; (vi) Verbal abuse directed at a member of staff of the Detention Facility, another Detainee or any visitor to the Detention Facility; (vii) Intentionally hindering a member of staff of the Detention Facility, or any other person at the Detention Facility for the purpose of working there, in the proper execution of his duties or the performance of his work; (viii) Destroying or damaging any part of the Detention Facility or any property thereof, other than his own; (ix) Inciting or attempting to incite another Detainee to commit any of the foregoing; and (x) Any act prejudicial to the health and safety of other Detainees, detention staff or any visitor, or to the good order and discipline of the Detention Facility’.

  244. 244.

    Rule 34(B).

  245. 245.

    Rule 34(E).

  246. 246.

    Rule 34(F) in conjunction with Rule 36(A).

  247. 247.

    Rule 34(G).

  248. 248.

    Rule 36(B).

  249. 249.

    Rule 34(G).

  250. 250.

    Rule 35(B).

  251. 251.

    Rule 35(C).

  252. 252.

    Rule 42(D).

  253. 253.

    These are: ‘(a) Confiscation of a dangerous item; (b) Removal or reduction of privileges or use of personal possessions, such as television, radio or books, and use of shopping facilities for a period not exceeding 14 days; (c) Oral or written warning; (d) Written notice of suspended punishment to come into effect immediately upon further breach of the Rules within a period of 3 months; (e) Loss of earnings, if applicable, for 14 days; (f) Confinement to an isolation cell; (g) Confinement to the Detainee's own cell for a period not exceeding 7 days. This shall mean that the privilege of evening association with others after 17:00 will be curtailed for the designated period’.

  254. 254.

    These are: ‘(a) Confiscation of a dangerous item; (b) Removal or reduction of privileges, including visits with family and friends or use of personal possessions, such as television, radio or books and use of shopping facilities for a period not exceeding 28 days; (c) Written warning; (d) Written notice of suspended punishment to come into effect immediately upon further breach of the Rules within a period of 180 days; (e) Loss of earnings, if applicable, for up to 90 days; (f) Confinement to an isolation cell; and (g) Confinement to the Detainee's own cell for up to 28 days. This shall mean that the privilege of evening association with others after 17:00 will be curtailed for the designated period’.

  255. 255.

    Sub-Rules (B) and (C) of Rules 38 and 39.

  256. 256.

    It mentions: ‘(a) Failure to obey an order or instruction given by a member of the staff of the detention centre; (b) Violent behaviour or aggression towards a member of staff of the detention centre, another detained person or any visitor to the detention centre; (c) Possession of any prohibited item or substance, as referred to in regulation 166, sub-regulations 2 or 7, or in regulation 167, sub-regulation 2; (d) Repeated misconduct after a warning has been given pursuant to regulation 211, sub-regulation 1 (c); (e) Escape or attempted escape from custody; (f) Verbal abuse directed at a member of staff of the detention centre, another detained person or any visitor to the detention centre; (g) Intentionally obstructing a member of staff in the execution of his or her duty, or any person who is at the detention centre for the purpose of working there, in the performance of his or her work; (h) Destroying or damaging any part of the detention centre or any property, other than his or her own; or (i) Inciting or attempting to incite another detained person to commit any of the foregoing offences’.

  257. 257.

    Regulation 208(1) of the RoR.

  258. 258.

    Regulation 210(3) of the RoR.

  259. 259.

    Regulation 214(1) of the RoR.

  260. 260.

    These are: ‘(a) Confiscation of an offending item; (b) Removal or reduction of privileges or of the use of personal possessions, e.g. television, radio or books, for a period not exceeding one week; (c) Oral or written warning; (d) Written notice of suspended punishment to come into effect immediately upon a further breach of these Regulations within a period of 3 months of the date of the initial offence; (e) Loss of earnings, if applicable; and (f) Confinement to a cell’.

  261. 261.

    Regulation 212(1) of the RoR.

  262. 262.

    ICC, Decision on the Application of Mr Germain Katanga in respect of the new policy in the detention centre on the registration of telephone contact, Prosecutor v. Katanga & Ngudjolo Chui, Case No. ICC-RoR221-02/09, Presidency, 17 September 2009, paras 65–69.

  263. 263.

    Regulation 214(2) of the RoR.

  264. 264.

    Regulation 215(1) of the RoR.

  265. 265.

    Regulation 215(5) of the RoR.

  266. 266.

    Regulation 215(3) of the RoR.

  267. 267.

    Regulation 215(8) of the RoR.

  268. 268.

    Regulation 216 of the RoR.

  269. 269.

    ECtHR, Ezeh and Connors v. the United Kingdom, judgment of 9 October 2003, Application Nos. 39665/98 and 40086/98, para 89.

  270. 270.

    See, e.g., ICTY, Judgement, Prosecutor v. Blaškić, Case No. IT-95-14-A, A. Ch., 29 July 2004, para 696; ICTY, Sentencing Judgement, Prosecutor v. Jokić, Case No. IT-01-42/1-S, T. Ch. I, 18 March 2004, para 100; ICTY, Sentencing Judgement, Prosecutor v. Nikolić, Case No. IT-02-60/1-S, T. Ch. I, 2 December 2003, para 268; ICTY, Judgement, Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, A. Ch., 17 December 2004, para 1090.

  271. 271.

    See, e.g., ICTY, Order of the President on the Application for the Early Release of Milan Simić, Case No. IT-95/2, President, 27 October 2003; Abels 2008, p. 798.

  272. 272.

    ICTR, interviews conducted by the author with UNDF detention authorities, Arusha-Tanzania, May 2008.

  273. 273.

    Livingstone et al. 2008, p. 397.

  274. 274.

    See, supra, Chap. 5.

  275. 275.

    See, in a similar vein, Livingstone et al. 2008, p. 380.

  276. 276.

    Robertson 1991, pp. 304–305. With respect to the latter argument, see also Jones and Rhine 1985, p. 48.

  277. 277.

    Harvard Center for Criminal Justice (Dauber, et al.) 1972, p. 201.

  278. 278.

    Id., p. 222.

  279. 279.

    See, supra, Chap. 5.

  280. 280.

    Harvard Center for Criminal Justice (Dauber, et al.) 1972, p. 222.

  281. 281.

    See, e.g., Schafer 1986, pp. 43–44. See, also, Jones and Rhine 1985, p. 101, where they argue that ‘experience has shown that providing inmates with [the due process guarantee to confront and cross-examine witnesses] has not undermined prison security’.

  282. 282.

    Robertson 1991, p. 324. See, also, Harvard Center for Criminal Justice (Dauber et al.) 1972, p. 225.

  283. 283.

    Ibid.

  284. 284.

    Robertson 1991, p. 327.

  285. 285.

    See, in a similar vein, Harvard Center for Criminal Justice (Dauberet al.) 1972, p. 221.

  286. 286.

    See, e.g., Robertson 1991, pp. 320–321.

  287. 287.

    Harvard Center for Criminal Justice (Dauber et al.) 1972, pp. 221–222; Jones and Rhine 1985, p. 98.

  288. 288.

    Harvard Center for Criminal Justice (Dauber et al.) 1972, p. 222.

  289. 289.

    Ibid.

  290. 290.

    See, supra, Chap. 5.

  291. 291.

    Ibid.

  292. 292.

    Harvard Center for Criminal Justice (Dauber et al.) 1972, p. 203.

  293. 293.

    Robertson 1991, p. 333.

  294. 294.

    Ibid.

  295. 295.

    Ibid.

  296. 296.

    Ibid.

  297. 297.

    Id., p. 334.

  298. 298.

    Ibid.

  299. 299.

    Livingstone et al. 2008, p. 400.

  300. 300.

    Ibid.

  301. 301.

    Kelk 2008, p. 194.

  302. 302.

    Jones and Rhine 1985, p. 99.

  303. 303.

    Penal Reform International 2001, p. 41, para 45.

  304. 304.

    Office of the United Nations High Commissioner for Human Rights 2005, p. 93; CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 59.

  305. 305.

    Penal Reform International 2001, p. 41, para 47.

  306. 306.

    In the Netherlands, for example, detained persons have the right to legal assistance before both the complaints committee (first instance) and the appeals committee. It follows from Articles 65(1) and 69(3) of the Dutch Penitentiary Principles Act that an appellant has the right to legal assistance by a legal adviser or any other ‘person of trust’ [vertrouwenspersoon] who has received permission thereto by the complaints committee (first instance) or the appeals committee. The ‘person of trust’ may, for instance, be a prison minister or another inmate.

  307. 307.

    Penal Reform International 2001.

  308. 308.

    Ploeg and Nijboer 1983, p. 184.

  309. 309.

    See, supra, Chap. 5.

  310. 310.

    See, in respect of the Polish legal system, Stando-Kawecka 2001, p. 533.

  311. 311.

    See, supra, Chap. 5.

  312. 312.

    See, supra, Chap. 5, p. 274, footnote 46, and the case law cited there.

  313. 313.

    Penal Reform International 2001, p. 47, para 66. See, also, Van Zyl Smit and Snacken 2009, p. 304; Livingstone et al. 2008, p. 411; Turner 1971, pp. 493–495.

  314. 314.

    Luise 1989, pp. 302, 315.

  315. 315.

    Benjamin and Lux 1975–1976, pp. 27, 33.

  316. 316.

    Penal Reform International 2001, p. 47, para 66. The handbook (in para 73) prescribes medical officers not to assist the prison administration in certifying a detainee’s fitness to sustain any punishment, since this would entail a violation of medical ethics.

  317. 317.

    CoE, Commentary on Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, sub Rule 60.

  318. 318.

    Branham 1986, p. 197.

  319. 319.

    See on the issue of standard of proof in prison disciplinary investigations, Hollander 1982, pp. 355, 358.

Author information

Authors and Affiliations

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

    Denis Abels

Authors
  1. Denis Abels
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Denis Abels .

Rights and permissions

Reprints and permissions

Copyright information

© 2012 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors

About this chapter

Cite this chapter

Abels, D. (2012). Discipline. 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_6

Download citation

Publish with us

Policies and ethics

Societies and partnerships

Search

Navigation