ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES
The Essex group reiterated that the non-discrimination requirement in Rule 58(2) means that the
right to conjugal visits equally applies to prisoners in a same-sex relationship and/or for partners
who are not legally married. The European Court of Human Rights has interpreted the right to
private and family life as not confined to legally acknowledged relationships.174
In regards to the conditions of conjugal visits, the location and design of the visiting rooms must be
private, in line with the right to privacy and family life, equipped with sanitary facilities and a bed.175
Access to legal representation
The Essex group welcomed the fact that the revised SMR acknowledge the right of both untried
and convicted prisoners to have access to legal representation and not only in the context of their
criminal procedure.
The experts acknowledged that the revised Rules introduce general provisions for ‘any legal
matter’ (Rule 61), and attach additional safeguards in the context of pre-trial detention (Rules 119,
120), while the entitlements and modalities of access to legal advisers and legal aid providers
‘continue to be governed by Rule 61’.
The CPT has clarified that the ‘right of access to a lawyer should be enjoyed by everyone who is
deprived of their liberty, no matter how ‘minor’ the offence of which they are suspected’.176
Proceedings for which prisoners may require legal assistance beyond and outside the pre-trial and
trial stages include appeals and other motions in the criminal procedure, but also civil proceedings
(e.g. marital and parental affairs, inheritance law etc.), potential complaints on detention conditions
and/or torture or other ill-treatment and any disciplinary sanctions or processes.177 The experts
stressed that prisoners must not be required to disclose the nature of their wish to see a legal
representative as it would render the safeguard void.
Detention pre-trial and during trial
Rule 119 incorporates state obligations relating to arrest and pre-trial detention which will
predominantly be addressed to police and judicial authorities. Rule 119(1) reiterates the obligation
to promptly inform every untried prisoner about the reasons for their detention and the charges
against them.178 (See Chapter 2, Prison management)
Yet, the reiteration of this principle in the revised SMR indicates a responsibility of prison
administration to ensure that the detainee in fact has received this information.
See for instance Keegan v. Ireland, Judgment of 26 May 1994, Series A no. 290, pp. 17-18, para. 44; Kroon and
others v. The Netherlands (Application no. 18535/91), Judgment of 27 October 1994, para. 30; Mikulić v. Croatia
(Application no. 53176/99), Judgment of 7 February 2002, para. 51.
174
Technical Guidance for Prison Planning, p. 126.
175
CPT, 21st General Report of the CPT: European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment: 1 August 2010-31 July 2011, Strasbourg, CPT/Inf (2011) 28, 10 November 2011, para. 20
(CPT 21st General Report).
176
The Inter-American Commission on Human Rights has also maintained that legal aid is a prerequisite to exercise the
right to petition (Inter-American Commission on Human Rights, Report on the Human Rights of Persons Deprived of
Liberty in the Americas, 31 December 2011, OEA/Ser.L/V/II.Doc 64, para. 254 (IACHR Report on Persons Deprived of
Liberty)).
177
See also Article 9(2) of the International Covenant on Civil and Political Rights and Principle 10 of the UN Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
178
Penal Reform International and the Essex Human Rights Centre
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