Judicial Supplement 22 - The Prosecutor v. Biljana Plavsic

The Prosecutor v. Biljana Plavsic - Case No. IT-00-40-I

"Order of the President on the Defence Request to Modify the Conditions of Detention of the Accused"

18 January 2001

Rule 64 of the Rules of Procedure and Evidence - United Nations General Assembly resolution 43/173 adopted on 9 December 1988 ("Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment") - Council of Europe Recommendation No. R (87) 3 adopted by the Committee of Ministers on 12 February 1987 - ECOSOC resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 - Conditions of detention - Separation of men and women.

(1) Since men and women, so far as possible, must be detained separately, the accused must be held in the section of the Detention Unit set aside for women and entirely separate from the section reserved for men. In addition, she must be guarded by women only and have access to the recreation and exercise rooms, the outside exercise yard and the library without the presence of male detainees;
(2) Since men and women may participate in activities together, there is reason to ensure that the accused, the only woman currently detained at the Detention Unit, is not isolated and may, if she so expressly requests, meet the other detainees during various activities.

Procedural Background

On 11 January 2001, the Defence filed a Request pursuant to Rule 64 of the Rules1 in which it requested that Biljana Plavsic be held under house arrest2 or detained in Republika Srpska. The grounds for the Request were that the United Nations Detention Unit is designed to receive male detainees only and has no unit or facility for women.

On 16 January 2001, the Registrar filed a Memorandum in which he asserted that the conditions of detention for a woman within the United Nations Detention Unit are wholly consonant with the minimum international rules for the protection of detainees, in particular United Nations General Assembly resolution 43/173 of 9 December 1988 entitled "Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment" and Council of Europe Recommendation No. R (87) 3 adopted by the Committee of Ministers on 12 February 1987.

On 11 and 17 January 2001, all the interested parties, i.e. the accused and her counsel, the Prosecutor, the Registrar and the Host Country, were heard in closed sessions. The Prosecutor did not object to the accused's being held under house arrest. The representatives of the Host Country confirmed that the Dutch authorities would undertake to bear the costs arising from the detention of Biljana Plavsic under house arrest and to provide security based on the fact that she is at present the only female incarcerated in the detention facility occupied by men. Subsequent to the hearings "in which she personally participated and having evaluated the physical, financial and psychological difficulties linked to the detention in Republika Srpska or in a safe house, Ms. Plavsic explicitly withdrew her initial request and expressed her wish to remain at the United Nations Detention Unit".

The Decision

The President took "note of the fact that the accused expressly withdrew her initial request" and ordered "that the accused be detained at the United Nations Detention Unit" under adapted conditions, namely that the accused:

- must be held in the section of the United Nations Detention Unit which is set aside for women and entirely separate from the section reserved for men;
- must be guarded by women only;
- must have access to the recreation and exercise rooms, the outside exercise yard and the library without the presence of male detainees;
- may if she so expressly requests, meet the other detainees during the various activities organised;
- must have an additional cell directly accessible from her own.

The Reasoning

The Order of the President is based on:

- Article 8(a) of the United Nations Standard Minimum Rules for Treatment of Prisoners approved by ECOSOC Resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977 which provides that "[m]en and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate";
- Article 11(2) of the Annex to the Council of Europe Recommendation No. R (87) 3 adopted by the Committee of the Ministers on 12 February 1987 which provides that "[m]ales and females shall in principle be detained separately, although they may participate together in organised activities as part of an established treatment programme";
- the fact that "the accused surrendered to the Tribunal of her own free will; that she is the only female detainee at the Detention Unit and that she cannot be required to prepare for her trial in a room used exclusively by men".

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1. "Upon being transferred to the seat of the Tribunal, the accused shall be detained in facilities provided by the host country, or by another country. In exceptional circumstances, the accused may be held in facilities outside of the host country. The President may, on the application of a party, request modification of the conditions of detention of an accused."
2. See The Prosecutor v. Tihomir Blaskic ("Lasva River Valley"), Case No. IT-95-14-T, President Antonio Cassese, Decision on Motion of the Defence Seeking Modification of the Conditions of Detention of General Blaskic, 9 January 1997, in which the President struck a balance between two main interests, namely "the right of all detainees to be treated in a human manner in accordance with the fundamental principles of respect for their inherent dignity and the presumption of innocence", and "the imperatives of security and order" submitted by the Host Country and the Registrar.