Views of the Committee on the Rights of Persons with Disabilities dated March 12, 2020 in the case "Christopher Leo v. Australia" (communication No. 17/2013).
In 2013, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
Summary: The Committee has taken note of the author's statement under article 5 of the Convention on the Rights of Persons with Disabilities that part II.A of the Criminal Code of the Northern Territory is discriminatory in that it applies only to persons with cognitive disabilities and that it provides for the indefinite arrest of such persons even without establishing their guilt in the commission of criminal offenses, whereas persons who do not suffer from cognitive disorders, They are protected from such treatment by applying the rules of due process and fair trial.
The Committee's legal position: The Committee recalled that, in accordance with article 5, paragraphs 1 and 2, of the Convention on the Rights of Persons with Disabilities, States parties must ensure that all persons are equal before the law and have the right to equal protection and equal use of the law without discrimination of any kind, and in order to promote equality and eliminate discrimination, they must take all appropriate steps to ensure reasonable accommodation. The Committee also drew attention to the fact that discrimination may result from the discriminatory effects of a norm or measure that does not have the purpose of discrimination, but disproportionately affects persons with disabilities (paragraph 8.3 of the Views) (See: "S.K. v. Brazil" (CRPD/C/12/D/10/2013), paragraph 6.4, and Noble v. Australia, paragraph 8.3.).
As explained in paragraph 16 of the Committee's general comment No. 6 (2018) on equality and non-discrimination, the concept of "equal use of the law", in the Committee's opinion, means that States parties must remove barriers to access to all guarantees and benefits of equal access to the law and justice provided for by law in order to defend rights (paragraph 8.4 of the Considerations).
The Convention recognizes that persons with disabilities are not required to live in certain housing conditions due to their limited capabilities. In addition, the placement of persons with disabilities in specialized institutions as a condition for the provision of State psychiatric services to them demonstrates unequal treatment on the basis of disability and is thus discriminatory (paragraph 8.5 of the Considerations).
The Committee reiterated that the status of a disabled person or the existence of any violation should never serve as a basis for depriving persons of legal capacity or any rights provided for in article 12 (See: Committee's general comment No. 1 (2014) on equality before the law, paragraph 9.), and that in accordance with paragraph 2 Article 12 States parties are obliged to recognize that persons with disabilities have legal capacity on an equal basis with other people in all aspects of life. In accordance with article 12, paragraph 3, States parties must ensure access to the support that persons with disabilities may need to exercise their legal capacity. The Committee also recalled that, according to article 13, paragraph 1, States parties must ensure effective access to justice for persons with disabilities on an equal basis with others, including by providing for procedural and age-appropriate adjustments (paragraph 8.6 of the Views).
The Committee pointed out that, although States parties have some discretion to determine the procedural mechanisms that allow persons with disabilities to exercise their legal capacity (See: Jungelin v. Sweden (CRPD/C/12/D/5/2011), paragraph 10.5.), the relevant rights of the person concerned must be respected (paragraph 8.7 Considerations).
Freedom and personal integrity are one of the most valuable rights that every person is endowed with. In particular, all persons with disabilities, and especially persons with intellectual and psychosocial disabilities, have the right to freedom in accordance with article 14 of the Convention (paragraph 8.8 of the Views).
The Committee stressed that States parties have special opportunities to protect the rights of persons deprived of their liberty, due to the fact that they exercise control over these persons (See: Guerrero Lares v. Bolivarian Republic of Venezuela (CAT/C/54/D/456/2011), paragraph 6.4, Irusta v. Argentina" (CED/C/10/D/1/2013), paragraph 10.5.), including the prevention of any forms of treatment contrary to article 15, and ensuring the rights enshrined in the Convention. In this context, the authorities of the State party should pay special attention to the specific needs and possible vulnerability of the person concerned, including due to his disability. The Committee recalled that failure to take adequate measures and to provide sufficient reasonable accommodation when required by persons with disabilities deprived of their liberty may constitute a violation of article 15, paragraph 2, of the Convention (paragraph 8.9 of the Views).
The Committee's assessment of the factual circumstances of the case: in accordance with Part II.A of the Criminal Code of the Northern Territory, a person found unable to stand trial could be detained for an unlimited period of time, since, as provided for in article 43ZC of the Code, a supervision order could be issued indefinitely, taking into account the conditions relating to its modification, cancellation or serious revision. The person against whom the supervision order is issued will presumably be considered as still mentally incapable of being brought to court until proven otherwise. At the same time, he or she does not have the opportunity to exercise his or her legal capacity in court. In November 2007, the author was charged with simple aggravated assault. In December 2007, he was declared unfit to stand trial. A detention order was issued and the author was held at the Alice Springs Correctional Center until June 2013, when he was placed in an isolation care facility. Finally, on November 7, 2016, he was transferred to a community residence where he lived alone. The Committee noted that throughout the author's detention, the entire judicial procedure focused on his mental ability to stand trial without giving him any opportunity to declare his innocence or respond to the charges against him. The Committee also took into account that, according to available information, the State party has not analyzed what measures can be taken to support the author of the communication and ensure his legal capacity, and has not taken any steps in this direction. As a result of the application of part II.A of the Criminal Code, the author was not heard at any stage of the trial, which deprived him of the right to a fair trial, as well as protection and equal use of the law. The Committee considered that part II.A of the Criminal Code had led to a discriminatory treatment of the author's case in violation of article 5, paragraphs 1 and 2, of the Convention (paragraph 8.4 of the Views).
The Committee also took note of the author's claim that his detention in an isolation care facility established only for persons with disabilities amounted to a violation of article 5 of the Convention. The Committee has taken into account the State party's statement that the author, who was under a regime supervision order, was placed in this new specialized institution and received the highest level of care and support services related to his disability. The author stayed in the institution until November 7, 2016, when he was transferred to a community residence, where he received specific support. In this regard, the Committee noted that, according to the information contained in the case file, the author was not consulted at any stage of the procedure concerning his detention and placement... The Committee concluded that the placement of the author in a special institution due to his disability between June 2013 and November 2016 amounted to a violation of article 5 of the Convention (paragraph 8.5 of the Views).
The decision that the author was unable to stand trial because of his intellectual and psychosocial disabilities resulted in the denial of his right to exercise his legal capacity in order to declare his innocence and challenge the incriminating evidence. Furthermore, while noting the State party's argument that the Northern Territory judicial system provides persons with disabilities with the same access to services, buildings and facilities as persons without disabilities, and that the State party is not aware of any rejected requests to support the author's participation in the proceedings, the Committee also noted The author's statement that the law did not provide for changes and adjustments that would make it possible to determine his guilt in committing crimes, taking into account his cognitive impairments. The Committee concluded that the State party's authorities did not provide adequate support or facilities to enable the author to stand trial and exercise his legal capacity. Therefore, he was never given the opportunity to seek a determination on the criminal charges against him. The Committee considered that, although States parties have some discretion to determine the procedural mechanisms that allow persons with disabilities to exercise their legal capacity (See: Jungelin v. Sweden (CRPD/C/12/D/5/2011), paragraph 10.5.), the relevant rights of the person concerned must be respected. In the author's case, this did not happen because he did not have the opportunity to do so and was not provided with adequate support or adaptation to exercise his rights to access justice and a fair trial. In view of the above, the Committee concluded that the situation in question amounted to a violation of the author's rights under article 12, paragraphs 2 and 3, and article 13, paragraph 1, of the Convention (paragraph 8.7 of the Views) (See Noble v. Australia, paragraph 8.6.).
The Committee noted the following - according to the decision of the Supreme Court of 4 December 2007 to declare the author unable to stand trial, the author was placed in prison after the decision of the Supreme Court of 22 December 2008. The Committee also stressed that the judges of the Supreme Court had expressed concern about the author's detention in a criminal justice institution, but this decision was taken due to the lack of alternative options and support services. Therefore, the decision to detain the author was made on the basis of an assessment by the State party's authorities of the potential consequences of his intellectual disability in the absence of a criminal conviction, which made his disability the main reason for his detention. Therefore, the Committee considered that the author's detention amounted to a violation of article 14, paragraph 1 (b), of the Convention, according to which the presence of a disability in no case can serve as a basis for deprivation of liberty (paragraph 8.8 of the Views) (See also Noble v. Australia, paragraph 8.7.).
The author claimed that he was detained in maximum security conditions, in the same room with convicts, was subjected to compulsory treatment and was also subjected to acts of violence by other prisoners. The State party acknowledged that the author was not always held separately from the convicts, he was temporarily held in isolation and sometimes he was subjected to compulsory treatment. In addition, the Committee noted that the author was detained, first in the Alice Springs Correctional Center and then in an isolation care facility. He was detained for more than nine years without any preliminary information regarding the expected length of his detention. His detention was considered indefinite because, in accordance with article 43ZC of Part II.A of the Criminal Code of the Northern Territory, the supervision order was issued for an indefinite period. Taking into account the irreparable psychological consequences that indefinite detention can have on a detained person, the Committee considered that the indefinite detention to which the author was subjected amounted to inhuman and degrading treatment. Therefore, the Committee considered that, even if the author had not proved that he had been subjected to violence by other prisoners, the indefinite nature of his detention, detention in a correctional center without a criminal conviction, periodic isolation, compulsory treatment and detention with convicted prisoners amounted to a violation of article 15 of the Convention (paragraph 8.10 of the Views).
The Committee's conclusions: The State party has not fulfilled its obligations under articles 5, 12, 13, 14 and 15 of the Convention.