Message: Marlon James Noble vs. Australia. Message No. 7/2012. The Views were adopted by the Committee on the Rights of Persons with Disabilities (hereinafter referred to as the Committee) September 2, 2016
In 2012, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
Subject of the message: the right to enjoy legal capacity on an equal basis with others.
Substantive issue: access to court; mental and intellectual disability; exercise of legal capacity; deprivation of liberty; discrimination on the basis of disability; restrictions on rights.
The Committee's legal position: on article 5, paragraphs 1 and 2, of the Convention on the Rights of Persons with Disabilities of December 13, 2006, States parties should ensure that all persons are equal before and under the law and have the right to equal protection of the law and equal use of it without discrimination, and in order to promote equality and eliminate discrimination should take all appropriate steps to ensure reasonable accommodation. The Committee... Recalls that discrimination may be the result of the discriminatory effect of a norm or measure that is not designed to discriminate, but disproportionately affects persons with disabilities (paragraph 8.3 of the Considerations) (See communication No. 10/2013, S.K. v. Brazil, Decision on inadmissibility adopted on October 2, 2014, paragraph 6.4.).
The Committee recalls that, under article 12, paragraph 2, of the [Convention], States parties have an obligation to recognize that persons with disabilities have legal capacity on an equal basis with others in all aspects of life. Under article 12, paragraph 3, of the [Convention], States parties have an obligation to provide persons with disabilities with access to the support they may need to exercise their legal capacity. The Committee also recalls that, under article 13, paragraph 1, [of the Convention], 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 8.5 of the Views).
The Committee considers that, although States parties have certain discretionary limits in order to establish procedural mechanisms to allow persons with disabilities to exercise their legal capacity (See communication No. 5/2011, Jungelin v. Sweden, Views of 2 October 2014, paragraph 10.5.), the relevant rights of the person concerned must be respected (paragraph 8.6 of the Views).
One of the most valuable rights that everyone is endowed with is freedom and personal integrity. In particular, all persons with disabilities, and especially those suffering from intellectual and psychosocial disabilities, have the right to freedom under article 14 of the Convention (paragraph 8.7 of the Considerations).
The Committee emphasizes that States parties occupy a special place in terms of guaranteeing the protection of the rights of persons deprived of their liberty, due to the degree of control they exercise over these persons (See Committee against Torture, communication No. 456/2011, Guerrero Lares v. Bolivarian Republic of Venezuela, Decision adopted on 15 May 2015, paragraph 6.4; Committee on Enforced Disappearances, Communication No. 1/2013, Irusta v. Argentina, Views adopted on 11 March 2016, paragraph 10.5.), including the prevention of any form of treatment contrary to article 15 of the Convention and the guarantee of rights established under 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 by reason of his or her disability (paragraph 8.9 of the Opinion).
The Committee's assessment of the factual circumstances of the case: The Committee notes... The author's statement that the Law on Mentally Ill Accused is discriminatory in nature, since it applies only to persons suffering from cognitive disorders and, if charged with criminal offenses, provides for their indefinite arrest without establishing guilt, whereas persons who do not suffer from cognitive disorders are protected from such treatment by applying the norms of due process due process and fair trial. The Committee also notes that, in the State party's view, this law is not discriminatory in nature, but provides for legitimate differential treatment of certain persons with disabilities, with safeguards in order to ensure its proportionality to the objectives of the law (paragraph 8.2 of the Opinion).
The Committee notes that the Law on Mentally Ill Accused is intended to address the situation of persons suffering from psychosocial and intellectual disabilities who are deemed unable to stand trial because of a mental disorder. Therefore, the question before the Committee is to determine whether the differential treatment provided for by Law is reasonable or does not lead to discriminatory treatment of persons with disabilities (paragraph 8.3 of the Opinion).
The author was accused in 2001 of sexual offences that have never been proven. In March 2003, he was declared legally incompetent. An arrest warrant was issued and the author was detained in the Greenough County Jail until January 10, 2012, when he was referred to the support service for adaptation. The Committee notes that throughout the author's incarceration, the entire judicial procedure focused on his mental capacity to stand trial, and he was not given any opportunity to declare his innocence and challenge incriminating evidence. The Committee also notes that the State party has not provided the author with the support or adaptation that he needs to exercise his legal capacity, and has not analyzed what measures could be taken to this end. On the contrary, as a result of the application of the Law, the author's right to a fair trial was completely suspended, which deprived him of protection and equal advantage of the law. The Committee therefore considers that the Law resulted in discriminatory treatment in the author's case, in violation of article 5, paragraphs 1 and 2, of the Convention... The Committee notes that, by law, with the recognition of a person as legally incompetent, he or she may be detained for an unlimited period of time. He or she will presumably be considered still mentally unfit to stand trial until proven otherwise. Meanwhile, such a person does not have the opportunity to exercise his legal capacity in the courts (paragraph 8.4 of the Considerations).
With regard to the author's allegations under article 12, paragraphs 2 and 3, and article 13, paragraph 1, of the Convention, the Committee notes the author's claim that the decision on his procedural incapacity deprived him of the opportunity to exercise his legal capacity in order to declare his innocence and challenge the incriminating evidence, which amounts to a violation of article 12, paragraphs 2 and 3 The Convention (paragraph 8.5 of the Views).
In the present case, the decision on the author's procedural incapacity due to his intellectual and mental incapacity resulted in the denial of his right to exercise his legal capacity in order to declare his innocence and challenge the incriminating evidence. Moreover, the authorities of the State party did not provide the author with any kind of adequate support to allow him to stand trial and declare his innocence, despite his clear intention to do so. And therefore, he was never given the opportunity to seek a determination on the criminal charges against him and potentially whitewash his status as an alleged sex offender. The Committee considers that, although States parties have certain discretionary limits in order to establish procedural mechanisms to allow persons with disabilities to exercise their legal capacity (See communication No. 5/2011, Jungelin v. Sweden, Views of 2 October 2014, 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 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 considers that the situation in question amounts to a violation of the author's rights under article 12, paragraphs 2 and 3, and article 13, paragraph 1, of the Convention (paragraph 8.6 of the Views).
The Committee notes that following the March 2003 decision of the District Court of Western Australia, according to which the author was found to be procedurally incompetent, after all charges against him were quashed under the Mentally Ill Defendants Act, he was imprisoned without being convicted of any offense. The Committee also notes the State party's contention that the competent authorities took this decision due to the lack of available alternatives and support services, although they considered that prison "is not an appropriate environment for the author". Therefore, the author's conclusion was chosen on the basis of an assessment by the State party's agencies of the potential consequences of his intellectual disability in the absence of any criminal conviction, thereby making disability the main reason for the conclusion. The Committee therefore considers that the author's conclusion amounts to a violation of article 14, paragraph 1 (b), of the Convention, according to which "the existence of a disability is in no case ..."..grounds for deprivation of liberty" (paragraph 8.7 of the Opinion).
The Committee notes that on January 10, 2012, the author was released from prison and transferred to the support service for adaptation on 10 conditions. Without going into a detailed analysis of these conditions, the Committee considers that, since these conditions were determined as a direct consequence of the author's conclusion, which is recognized as a violation of the Convention, they also amount to a violation of article 14, paragraph 1 (b) (paragraph 8.8 of the Opinion).
The Committee notes the author's allegations that he was subjected to frequent acts of violence and abuse, that his disability prevented him from defending himself against such acts, and that the State party's authorities did not take any measures to punish and prevent them or protect the author from them. In addition, the Committee notes that the author was detained for more than 13 years without any indication as to the length of his detention. His detention was considered to be indefinite in nature, since, in accordance with article 10 of the Law on Mentally Ill Defendants, "an accused who is recognized under this section as mentally incapable to stand trial is presumably considered to be still mentally incapable until proven otherwise." Taking into account the irreparable psychological consequences that indefinite detention can have for a prisoner, the Committee considers that the indefinite detention to which he was subjected amounts to inhuman and degrading treatment. The Committee therefore considers that the author's indefinite detention and the repeated acts of violence to which he was subjected during his detention amount to a violation by the State party of article 15 of the Convention (paragraph 8.9 of the Views).
The Committee's conclusions: The State party has failed to comply with its obligations under articles 5, paragraphs 1 and 2, 12, 2 and 3, 13, 1, 14 (1) (b) and 15 of the Convention (paragraph 8.10 of the Views).