Today, only the Special Court for Sierra Leone takes care of certain family visits for indigent prisoners in Freetown. Indeed, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) refuse to finance, even partially, family visits for indigent prisoners.
In many countries today, this right is regarded as fundamental. It is, furthermore, enshrined by the European Convention on Human Rights (ECHR) as well as by jurisprudence from the European Court.
The International Federation for Human Rights (FIDH), which was invited at the end of May by the Registrar of the International Criminal Court (ICC) to address its remarks on this question, pointed out that this right has as a corollary in “the recognition of rights to members of their family, in particular the child”. It, thus, aims to maintain family ties and supports a future reintegration of the convict.
The question is also important in view of the fundamental principle of the presumption of innocence. Indeed, prisoners in preventive custody who are either suspects or defendants who still wait for their judgment and the International Criminal Court has, from the point of view of the FIDH, “the obligation to maintain the person in a similar situation to the state of freedom, as far as possible, family visits contribute to it”.
The principle is not being called into question; it is the obligatory financing by the Court of family visits for indigent prisoners that seems to be problematic. The Court says that it is particularly worried by this issue because of its universal justice vocation it will be brought to prosecute individuals from far away countries.
While certain ICC States Parties, during the sixth plenary session, wanted “to support the assumption of responsibility for these visits by the Court when the suspect or the accused is indigent, basing themselves on humanitarian criteria”, others expressed “fears relating to the creation of a precedent and to the lack of precision on the scope and criteria of this assumption of responsibility”.
The FIDH recommends to the registry to take into account in a precise and exhaustive manner the concerns of the states to: answer the fears of the states relative to the possible creation of a precedent (including from the point of view of human rights), evaluate the other options of financing suggested by the states and approach the concept of “indigence” considering if the concept applicable to legal aid should also be used in the context of the family visits.
The absence of precedents on the matter reassures those who are reticent. The international criminal tribunals for the former Yugoslavia and Rwanda envisage the assumption of responsibility as a part of the expenses of communication of indigent prisoners with their families, but do not incorporate the right of visitation.
This refusal to finance generated “a troubling practice” at the ICTR, said Mandiaye Niang, special adviser to the Registrar: some defendants have called their relatives as witness in proceedings with the only goal of seeing them, the trip was financed in this case by the Tribunal. This practice “leads to a problem of good administration of justice and of an unquestionable conflict of interest”, pointed out the FIDH.
At the ICTY, it is the governments of the former Yugoslavia and associations supportive of their “war heroes”, as they are sometimes referred to, who pay to the Tribunal the expenses inherent of the family visits.
Within the framework of the family visits, the ICTR has authorized since May the right to marital visits. The ICTY has been implementing this right already for several years. It seems that these visits are at the expense of the families.
At the United Nations detention centre in Arusha, each prisoner now has the right to three hours of visitation with their spouse every two months, except if the spouse comes from a country outside Tanzania or the neighbouring countries. The spouse can then reiterate their visit within a closer timeframe.
Questioned by the press after this decision, the head of the ICTR detention centre in Arusha, Saydou Guindo explained at the end of June that “nothing prohibits at the international level marital visits”. He reminded that “for convicts, it is the prisoner who is struck with sanctions and not the spouse. For the prisoners whose trials are on going, there is always the presumption of innocence”.
In its “proposals to protect and improve the maintenance of family, friendly and social ties” of January 2006, Georgia Bechlivanou-Moreau, a lawyer specialized in correctional law and human rights, affirmed that “the intimacy is indisputably an essential factor so that the visits [in prison] are true private life, family and friendly moments where one can express oneself freely, confide, touch. But it is also necessary to ensure another aspect of private and family life guaranteed by article 8 of the European Convention on Human Rights, sexual intimacy”, itself essential to the “right to found a family” according to article 12 of the same law.
The Rwandan Prosecutor General, Martin Ngoga, reacted with anger to the announcement by the ICTR to authorize these visits. He finds this decision “ridiculous”. This practice does not exist in Rwanda. This country fears that the decision of the ICTR will constitute a new reason not to authorize the transfers of prisoners towards his country.
Already in 1998, the Committee of Ministers of the Council of Europe recommended to its member states “to plan to give to incarcerated persons the possibility of meeting their sexual partner without visual surveillance during the visit” (Recommendation R (98) 7, relating to the ethical and organizational aspects of health care in a penitentiary situation, rule n°68).