The case of A.S. v. Australia. The views of the UN Human Rights Committee dated July 2, 2021. Communication No. 2900/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
The author claimed that his rights were violated by the State party as a result of his arbitrary detention for an indefinite period in a high-security prison, where his needs due to his disability could not be met. The applicant stated that his continued detention was arbitrary because it was based on his mental disorder and not on a criminal conviction. He stated that the circumstances of his detention amounted to torture or cruel, inhuman or degrading treatment or punishment and deprived him of the right to humane and decent treatment. The complainant also alleged a violation of his rights, as the State party had not provided him with rehabilitation services. He claimed that his transfer to the Darwin Correctional Center amounted to arbitrary interference in his family life, since he could no longer be visited by his family members and had no contact with his wider family, that is, with his compatriots held in the correctional center. The Committee stated that the facts before it revealed violations by the State party of articles 7, 9, paragraphs 1 and 4, 10, paragraph 3, and 17 of the Covenant.
The Committee's legal position: Arrest or detention may be in accordance with domestic law, but may nevertheless be arbitrary. The concept of "arbitrariness" should not be equated with the concept of "illegality", but should be interpreted more broadly, including elements of unacceptability, injustice, unpredictability and non-compliance with procedural guarantees, along with elements of expediency, necessity and proportionality.... [E] If States parties apply security detention (sometimes referred to as administrative detention or arrest) outside of criminal prosecution, the Committee considers that such detention carries a serious risk of arbitrary deprivation of liberty. If, in the most exceptional circumstances, reference is made to a real, direct and serious threat to security in order to justify the detention of persons who allegedly pose such a threat, then the burden on States parties is to prove that the person in question does pose such a threat and cannot be averted by alternative measures, and this burden increases as as the length of detention increases. States parties must also demonstrate that detention does not exceed the period that is absolutely necessary, that the total duration of possible detention is limited and that in all cases they fully comply with the guarantees provided for in article 9 of the Covenant. Prompt and regular review by a court or other judicial body possessing all the qualities of an independent and impartial judiciary serves as a necessary guarantee of compliance with these requirements (paragraph 8.3 of the Considerations).
There must be some connection between the grounds for deprivation of liberty and the place and conditions of detention (paragraph 8.6 of the Considerations).
The Committee considers that, as a rule, it is for the authorities of States parties to examine and evaluate facts and evidence, unless it can be established that the assessment was manifestly arbitrary or in some other way amounted to a denial of justice (paragraph 8.7 of the Views).
The Committee's assessment of the factual circumstances of the case: With regard to the author's allegations under article 9 of the Covenant, the Committee took note of the author's statement that his detention was arbitrary, since during most of his detention the authorities did not provide him with suitable accommodation in a secure care facility appropriate for his disability. In this regard, the Committee took into account the author's position that the prison environment is not suitable for the rehabilitation and care of convicted persons with mental disabilities. The Committee took into account the author's statement that, due to the indefinite duration of the supervision order in conditions of deprivation of liberty and the lack of mandatory review of this order at regular intervals, his deprivation of liberty became disproportionate. The Committee noted that the State party disputed the claim that the author's detention was arbitrary, as it had objective and reasonable grounds. The State party noted that the Supreme Court regularly reviewed the author's case, that a behavioral support plan was drawn up and that less stringent measures were applied whenever the author's situation allowed for this (paragraph 8.2 of the Views).
The Committee took into account that the initial period of the author's imprisonment in the correctional centre was based on a decision of the Supreme Court of 15 October 1996 in accordance with article 382 (paragraph 2) of the Northern Territory Criminal Code Act in force at that time. This was followed by a decision of the Administrator (Administrator of the Northern Territory.) dated September 27, 2001, in which the Administrator ordered the author to be kept in the same institution. Part IIA of the Criminal Code Act entered into force on June 15, 2002, and in accordance with the transitional provisions of section 6 of the Amendment Act, the author, being acquitted on the grounds of "insanity" in accordance with the repealed provisions and according to the order on security custody (before the decision of the Administrator), was considered a supervised person being held in custody on the same grounds and conditions as in accordance with the order on supervision of a person in custody within the meaning of Part IIA of the Criminal Code Act. The Committee noted that it had no reason to doubt the assessment of the authorities of the country, according to which the author suffered from mental disorders and, due to his state of health, his case fell under the aforementioned special legislation (paragraph 8.4 of the Views).
The Committee noted that after the entry into force of the Law on Amendments, no official order was issued to supervise the author in conditions of deprivation of liberty. Although the Supreme Court reviewed the case in August 2003 in accordance with paragraph 3 of article 6 of the Law on Amendments and a decision was rendered on September 10, 2003, this occurred with a six-month delay. In addition, contrary to article 43ZG of the Criminal Code Act, the term of the supervision order was not set, and a mandatory review was to be carried out towards the end of this period. Although in 2007 the Court ruled that, despite these shortcomings, the 2003 decision was in accordance with the applicable provisions of the law, the Committee stressed that as a result of this interpretation, the minimum period of supervision of the author was never established, and the only mandatory review took place in 2003. The Committee noted that, although reports should still be submitted to the Court at regular intervals, it was nevertheless the Court that decided whether to review. Up to this point, the procedures are not adversarial, which means that important habeas corpus guarantees under article 9, paragraph 4, of the Covenant, such as access to information and the right to challenge evidence, were absent. Although evidentiary hearings appear to have taken place in this case, they date back only to 2014, and no information has been provided to the Committee suggesting that the author was heard in these cases (paragraph 8.5 of the Views).
The Committee stressed that the author was held in high-security prisons from August 1995 to 7 February 2017, with the exception of a short period in 2013/14. The Committee recognized the importance of a fair balance between human interests and public safety and that experts regularly informed the Supreme Court about the author's situation. The Committee was unable to accept the State party's argument that the author in the present case was constantly receiving appropriate care, even when he was not in protected care facilities that were undoubtedly better suited to meet his needs. The Committee noted that the Supreme Court, in its 2003 decision, was particularly clear on this issue, ruling that the resources available at the Alice Springs Correctional Center were not suitable for the author's detention and care. This conclusion was confirmed by the Australian Human Rights Commission in 2014. The Committee took note of the improvement in the conditions of the author's detention whenever he was placed in a secure care facility and the efforts of all those who provided care for the author, including the implementation of a support plan. This eventually led to the Supreme Court changing the supervision of him in prison to non-custodial supervision, at the same time it considered that these changes could not explain the illegality of the periods spent in a high-security prison for such a long time. The Committee noted that the alleged lack of resources could not release the State party from its obligations in this regard (paragraph 8.6 of the Views).
On the basis of the materials submitted to the Committee, the Committee recognized that the State party had failed to prove that the legitimate objectives of supervision of the author in conditions of deprivation of liberty could not have been achieved by using less radical means than his continued detention in a high-security prison, especially since, in accordance with article 10, paragraph 3, of the Covenant The State party has had an ongoing obligation to take meaningful measures to rehabilitate the author during the almost 20 years during which he was held in a high-security prison. The Committee decided that the author's detention was arbitrary and thus contrary to the guarantees provided for in article 9, paragraph 1, of the Covenant... The Committee noted that the author's inability to challenge the existence of a substantive justification for continuing his detention for preventive reasons was a violation of his rights under article 9 (paragraph 4) of the Covenant (paragraph 8.7 of the Views).
In view of the fact that the author's complaints were largely related to the inadequacy of the alleged re-education and rehabilitation services for most of his detention, the Committee also found a separate violation of article 10, paragraph 3, of the Covenant (paragraph 8.8 of the Views).
The Committee has taken note of the author's allegations of alleged ill-treatment under articles 7 and 10 (paragraph 1) of the Covenant and the information provided to it by the State party in response to these allegations, namely: the author was held in conditions different from the general conditions in the correctional center; there was no evidence that that the author was subjected to ill-treatment by staff; his preventive detention was justified on security grounds. The Committee considered that these factors did not invalidate the author's uncontested claim about the negative impact on him as a result of supervision under conditions of imprisonment, the minimum term of which remained undetermined throughout the time. Moreover, the very fact that the author preferred isolation to being held with other prisoners, as a result of which he would be more exposed to insults, does not necessarily make his isolation lawful. Rather, it testified to the limitations of his choice in prison conditions, which did not take into account his pathology. In these circumstances, the Committee considered that the author's inadequate conditions of detention for most of the time, combined with the indefinite nature of his detention and the lack of mandatory review in an adversarial process, combined to cause him serious psychological harm and constituted treatment contrary to article 7 of the Covenant (paragraph 8.9 of the Views).
The Committee took note of the author's claim under articles 17, paragraph 1, and 23 of the Covenant, in particular that he had limited contact with his family at the correctional center and that opportunities for such contact became even less when he was transferred to Darwin. The Committee has taken into account the State party's statement that in 2013, a total of 11 members of the author's family were repeatedly supported to visit the author and that while he was in the Alice Springs care facility, he had the opportunity to participate in the programs provided for him along with his sister. In this regard, the Committee noted that there was insufficient information at its disposal to conclude that the circumstances of the author's transfer to Darwin had indeed placed a disproportionate burden on his family life, given the fact that the purpose of the author's transfer appeared to be to find a suitable facility for his therapeutic treatment, as indicated by his subsequent and gradual progress testifies. The Committee therefore limited its consideration to the period of the author's detention at the Alice Springs Correctional Center. In this regard, the Committee noted that, as shown by the measures taken in 2013 and 2014, the State party had at its disposal certain measures to facilitate the author's contacts with his family. The Committee noted that such support was provided to the author at the time, regardless of the State party's objection that article 17 of the Covenant was not intended to cover links that did not exist at the time of the alleged violation. The Committee reported that it had no information at its disposal suggesting that any similar measures had been taken before 2013, although they could have been particularly useful to the author. In the absence of any information concerning this particularly long period (from August 1995 to 2013), the Committee stressed that the author's complaints went beyond the burden inherent in detention and concluded that there had been a violation of article 17 of the Covenant (paragraph 8.10 of the Views).
The Committee's conclusions: The facts presented revealed violations by the State party of articles 7, paragraphs 1 and 4 of articles 9, paragraph 3 of articles 10 and article 17 of the Covenant (paragraph 9 of the Views).