On December 4, 2019, a case was won in the UN Committee against Torture.

Заголовок: On December 4, 2019, a case was won in the UN Committee against Torture. Сведения: 2024-06-26 03:35:45

Message No. 852/2017. Paul Zentveld vs. New Zealand. Decision of the Committee against Torture of December 4, 2019

In 2017, the author of the communication was assisted in preparing a complaint. The complaint was subsequently communicated to New Zealand.

The author claimed to have been a victim of ill-treatment and torture in the juvenile ward of Lake Alice Hospital. He complained that the State party had failed to ensure that hospital staff who had abused children in their care were brought to justice.

The Committee's legal position is that a criminal investigation [into ill-treatment] should aim both to determine the nature and circumstances of the alleged acts and to establish the identity of the person or persons who may have been involved in them (See: Kirsanov v. the Russian Federation, paragraph 11.3.). Such a practice is not a guarantee of a result, but it represents This is one of the means to achieve it (paragraph 9.2 of the Decision) (See, for example: The European Court of Human Rights, C.A.S. and C.S. v. Romania, application N 26692/05, 20 March 2012, para. 70.).

The Committee's assessment of the factual circumstances of the case: the main question was whether the author's complaint of ill-treatment by staff of the Department for Children and Adolescents at Lake Alice Psychiatric Hospital between 1974 and 1977 was promptly and impartially examined by the competent authorities in accordance with articles 12 and 13 of the Convention [against Torture]... The Committee should have reviewed the activities of the State party's authorities and established whether they had taken all objectively available measures to conduct an investigation during which it would have been possible not only to establish the facts, but also to identify and punish those responsible (paragraph 9.2 of the Decision).

The Committee noted that the State party had not disputed the events that took place in the 1970s at the Lake Alice Children's and Adolescent Hospital. Statements about these events were first filed in 1976, while the author participated in the work of the 1977 Commission of Inquiry. According to a police report dated March 22, 2010, in 1979 the department was closed "due to concerns about the lack of proper control and complaints expressed following a number of inspections."... In a letter of apology received by the author on or about December 23, 2002 or so, it was mentioned that the Government had apologized for the "treatment" that the author had "been subjected to and could have witnessed" at Lake Alice Hospital. The Committee pointed out that the State party did not dispute the claim that the treatment described by the author met the definition of torture contained in article 1 of the Convention, or at least ill-treatment as defined in article 16 of the Convention (paragraph 9.3 of the Decision).

The Committee further noted that in his 2006 statement to the police, the author referred to the use of electric shocks and drugs as punishment, as well as cases of sexual assault while he was still a child and in the care of the State. However, despite the seriousness of these allegations and the particular vulnerability of the author, who was a child [at the time] of these events, and despite the conclusions of a former High Court judge that electroshock therapy was usually used as punishment for children, the Committee noted the following - in the final report of March 22, 2010, prepared by According to the results of the police investigation, which lasted more than three and a half years, it was not clarified whether the alleged treatment was actually used as punishment. The report noted that "there is evidence of the use of ECT (Electroconvulsive therapy.) in both treatment regimens." There is also evidence of the use of electric shock in circumstances that suggest its use as a form of aversive therapy or punishment. The report also mentioned: "This is the seventh review of these or related facts." In this context, the Committee recalled its recommendation that the State party promptly and impartially investigate allegations of ill-treatment in "historical cases" and bring those responsible to justice... The Committee further referred to its conclusion reached in 2015. in the concluding observations to the sixth periodic report of the State party, regarding the fact that "the State party has not investigated about 200 allegations of torture and ill-treatment of minors at the Lake Alice Hospital and has not brought anyone to justice", as well as its recommendation to conduct prompt, impartial and thorough investigations of all allegations on ill-treatment in medical institutions and to bring to justice persons suspected of ill-treatment (CAT/C/NZL/CO/6, paragraph 15). A 2010 police report also noted the "close and constant media attention to the case." Therefore, the Committee expressed concern that despite repeated investigations into the same issue, the recognition by the police of the "validity of the statement" and the recognition by the State party in the Committee of the seriousness of allegations of torture that occurred in the past, along with confirmation of the continued public attention to this issue, the State party's authorities did not We have carried out consistent work to establish the facts on such a significant issue related to the previous abuse of children in the care of the State. They also did not explicitly confirm or characterize in any way the treatment to which, according to the author, he was subjected (paragraph 9.4 of the Decision).

In its observations, the State party argued that the decision not to prosecute Dr. Leakes was based on insufficient evidence and on the determination that initiating criminal prosecution would not contribute to the protection of the public interest. However, the State party has not demonstrated that it has made sufficient efforts to clarify the facts. The State party acknowledged not only that complaints related to treatment at Lake Alice Hospital in the 1970s began to be received in 1976, but also that as recently as 2018. A Royal Commission has been set up to investigate historical cases of abuse in the public care system, including in Lake Alice, and new related complaints filed in 2019 are being investigated by the police. In the absence of convincing explanations from the State party, the Committee did not see any grounds for claiming that criminal prosecution would not be in the public interest. The case concerns violence in the State care system, to which a vulnerable group of the population has been subjected, and independent bodies cannot be delegated the right to make decisions on issues involving criminal liability. In this regard, the Committee noted the following - the Medical Council also did not take any action, accepting Dr. Lix's request to cancel his registration as a practicing physician. The State party agreed with these actions, which led to the impunity of Dr. Leakes, despite the State's obligation to protect from abuse those who are in a vulnerable position and have no other legitimate opportunity to make further statements to the competent authorities (paragraph 9.5 of the Decision). "In the 2010 police report It goes on to mention that "the charges were considered only in terms of the guilt of the main suspect, Dr. Leakes," and concludes that "there is hardly enough evidence to successfully bring charges of intentional cruelty to a child." The Committee expresses concern that the authorities have not tried to find out whether anyone else could have been held accountable for the alleged violations, which raises doubts about the effectiveness of the police investigation, which should ensure that those responsible for these violations are identified" (paragraph 9.6 of the Decision).

The Committee stressed that a significant argument for the police investigation was the fact that the time limit for the police to file the relevant charges was limited to six months. However, neither the State party's observations nor the results of the police investigation have established whether the author, who was a victim of abuse as a child, could have successfully filed a complaint within six months of the termination of his stay at Lake Alice Hospital, where he was placed with the consent of his own mother. The Committee noted that the author remained in the hospital until 1975, and then provided information to the Commission of Inquiry in 1977. In this regard, the Committee drew the attention of the State party to its obligation under article 12 of the Convention to ensure that the competent authorities, by virtue of their duties, conduct a prompt and impartial investigation if there are reasonable grounds to believe that torture has occurred (See, for example, Kabura v. Burundi (CAT/C/59/D/549/2013), paragraph 7.4.). The Committee noted that only in 2003 The Government has invited former Lake Alice Hospital patients who have been victims of abuse to file criminal charges with the police. However, despite this direct offer from the Government, the police have not yet established the facts relevant to the events in question (paragraph 9.7 of the Decision).

The Committee stressed that the investigative authorities of the State party, having received a number of complaints concerning the events that occurred at Lake Alice Hospital, chose only one "representative complaint for detailed consideration". The Committee considered that the decision to thoroughly examine only one complaint, taking into account the existence of indisputable allegations of previous offenses, entailed the risk of ignoring the systemic nature of the case under consideration and all the circumstances surrounding it (paragraph 9.8 of the Decision).

The Committee's conclusions: The improper conduct by the State party of an effective investigation into the circumstances in which the author, who was in the children and adolescents unit at Lake Alice Hospital, was subjected to torture and other acts of ill-treatment is contrary to articles 12, 13 and 14 of the Convention, according to which the State party is under an obligation to ensure a prompt and impartial investigation by competent authorities if there are reasonable grounds to believe that there has been a fact of torture and/or other ill-treatment (paragraph 9.9 of the Decision).



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