The case is Christopher Leo v. Australia. Views of the Committee on the Rights of Persons with Disabilities dated March 12, 2020. Communication No. 17/2013.
In 2013, the author of the communication was assisted in the preparation of complaints. Subsequently, the complaint was communicated to Australia.
The Committee took 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 of Australia 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 criminal offenses Whereas persons who do not suffer from cognitive disabilities are protected from such treatment through the application of due process and fair trial standards. In the opinion of the Committee on the Rights of Persons with Disabilities, the indefinite nature of the author's detention, detention in a correctional center without conviction for a criminal offense, periodic isolation, compulsory treatment and detention together with convicted prisoners amount to a violation of the Convention.
As seen from the text of the Considerations, the author of the communication is Christopher Leo, a representative of the indigenous population of Australia, born on 24 August 1980. He claimed to be a victim of a violation by the State party of the articles 5, 12, 13, 14, 15, 19, 25, 26 and 28 of the Convention on the Rights of Persons with Disabilities. The author's right to equality and non-discrimination in accordance with article 5, his right to liberty and security of person in accordance with article 14 and his right to freedom from torture and cruel, inhuman or degrading treatment or punishment in accordance with article 15 of the Convention were violated because he was in a place of detention until June 2013. detention, where he was placed indefinitely without being convicted of a crime. A person who does not have a disability cannot be imprisoned indefinitely without being convicted of a crime (paragraph 3.2 of the Considerations). The author had an intellectual disability due to traumatic brain injury, epilepsy and mental illness (paragraph 2.1 of the Considerations).
The Committee's assessment of the factual circumstances of the case: it was established that, according to Part II.A of the Criminal Code of the Northern Territory of Australia, 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 said 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. As follows from the submitted materials, in November 2007 the author was charged with simple aggravated assault. In December 2007, he was declared unable to stand trial. An order was issued to place him in custody, and the author was held at the Alice Springs Correctional Center until June 2013, when he was placed in an isolation care facility. On November 7, 2016, he was transferred to a communal place of residence, where he was 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 of the Northern Territory of Australia, 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: Part II.A of the said Criminal Code led to a discriminatory examination of the author's case in violation of paragraphs 1 and 2 of article 5 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 judicial system of the Northern Territory of Australia 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 He 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 had not provided adequate support or facilities to enable the author to appear before a court 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 in determining the procedural mechanisms that allow persons with disabilities to exercise their legal capacity, 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).
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, 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).
The author claimed that he was detained in maximum security conditions, in the same room with convicts, subjected to forced treatment and 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 section 43ZC of Part II.A of the Criminal Code of the Northern Territory of Australia, a 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 took into account 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 together 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.