Message: David Hicks vs. Australia. Message No. 1909/2009. The Opinion was adopted by the Committee on November 5, 2015.
In 2009, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
Subject of the communication: The responsibility of the State party for the execution of a sentence imposed in a foreign State.
Substantive issue: retroactive punishment, torture, arbitrary detention, conditions of detention, unfair trial, non-discrimination, right to privacy.
The Committee's legal position: According to the Covenant, States parties are not obliged to execute a sentence when there is sufficient evidence that it was imposed as a result of a trial in which the rights of the accused were clearly violated (paragraph 4.9 of the Views).
The Committee's assessment of the factual circumstances of the case: [n]a stage of the admissibility review, the Committee decided that the issue of the State party's jurisdiction is closely linked to the merits of the case and should be considered at this stage. The Committee must therefore find out whether the State party at any time exercised authority or effective control over the author, and thus whether the author was under its jurisdiction (paragraph 4.2 of the Views).
The Committee takes note of the author's allegations that: (a) the State party has engaged in direct negotiations with the United States regarding the standards of judicial procedure to be applied to the author ...; (b) the State party has made various representations to the United States Government in an effort to improve the author's protection and secure the release of another Australian detained in the Gulf Guantanamo Bay...; (c) The author was visited 21 times by Australian officials and police officers ... while he was in United States custody, and Australian agents interviewed him to gather information that was later used against him during the issuance of a restraining order in Australian courts ...; (d) Australia knew the terms of the plea agreement, concluded with the prosecution, which required the author to cooperate with the Australian authorities and contained other provisions in favor of Australia; (e) The author reported his treatment to Australian officials who interviewed him, and Australia requested the United States authorities to investigate his allegations (paragraph 4.3 of the Views).
Based on these facts, which the State party has not disputed, it can be assumed that the State party had some influence on how the United States treated the author and was in a position to take positive measures to ensure that the author was treated in accordance with the Covenant, including remedial measures violations of the author's rights (paragraph 4.4 of the Opinion).
However, the influence wielded by the State party cannot be considered as exercising authority or effective control over the author, who was detained in territory controlled by the United States that is not under the sovereignty or jurisdiction of the State party (paragraph 4.5 of the Opinion).
During the entire time that the author spent in custody under the control of the United States, the author cannot be considered as being under the "jurisdiction" of the State party within the meaning of article 1 of the Optional Protocol and article 2, paragraph 1, of the Covenant. As a result, the Committee has grounds ratione loci not to render an opinion on the author's allegations under articles 2 and 7 of the Covenant, which relate to his treatment while in United States custody (paragraph 4.6 of the Views).
(b) Australia's alleged responsibility in relation to the enforcement of a prison sentence under a transfer agreement.
As a result of the transfer agreement, the author was transferred to Australia on 20 May 2007 to serve the remainder of the sentence imposed on him by the United States Military Commission on 31 March 2007. The Committee is considering whether, by keeping the author in prison until December 29, 2007, as a result of this agreement, the State party violated the author's rights under article 9, paragraph 1, of the Covenant (paragraph 4.7 of the Views).
At the time of the author's transfer, a large amount of information was publicly available that raised serious concerns about the fairness of the procedures of the United States Military Commission, and this should have been enough for the Australian authorities to have doubts about the legality and legitimacy of the sentence imposed on the author. Many of these concerns were expressed by the Committee in its concluding observations on the second and third periodic reports of the United States, adopted on July 27, 2006. (CCPR/C/USA/C/3/Rev.l), and the Committee against Torture in its concluding observations on the second periodic report of the United States of America, adopted in May 2006 (CAT/C/USA/CO/2). Although this happened after the alleged facts, the decision of the Supervisory Court of the United States Military Commission of February 18, 2015, in favor of the author, leaves no doubt about the unfairness of the trial against him, as well as that the crimes for which he was convicted were retrospective. In addition, in view of the author's visits to Guantanamo Bay by Australian officials and law enforcement officials, the State party had every opportunity to know the conditions of the author's trial (paragraph 4.8 of the Views).
Transfer agreements play an important role for humanitarian and other legitimate purposes, allowing individuals who have been convicted abroad and agree to transfer to return to their country to serve their sentences and benefit, for example, from closer contact with their family....In the Committee's view, the execution under the transfer agreement of sentences imposed as a result of a flagrant denial of justice constitutes a disproportionate restriction on the right to liberty, in violation of article 9, paragraph 1, of the Covenant. The fact that the person concerned accepted the terms of the agreement as a prerequisite for his return is not decisive, given that in this case it can be demonstrated that the conditions of detention and the ill-treatment to which he was subjected left him with very limited options. In such circumstances, the State party should have ensured that the terms of the transfer agreement did not lead to a violation of the Covenant on its part (paragraph 4.9 of the Opinion).
The Committee notes the author's allegations that the State party not only failed to negotiate the terms of the transfer agreement in a manner consistent with its obligations under the Covenant, but also significantly influenced the wording of the plea agreement, which was a condition for the author's immediate return to Australia. The Committee also notes the State party's contention that the author agreed to plead guilty because he considered prison conditions in Australia to be more favourable. However, the Committee considers that, in order to avoid the violations to which the author was subjected, he had no choice but to accept the terms of the plea agreement that was offered to him. That is why the State party has an obligation to prove that it has done everything possible to ensure that the terms of the transfer agreement it has concluded with the United States do not lead to a violation of the Covenant, especially given that the author is one of its citizens. In the absence of such evidence, the Committee considers that by agreeing to execute the remainder of the sentence in accordance with the plea agreement and to deprive the author of his liberty for seven months, the State party violated the author's rights under article 9, paragraph 1, of the Covenant (paragraph 4.10 of the Views).
The Committee's conclusions: the facts before it reveal a violation of article 9, paragraph 1, of the Covenant (paragraph 5 of the Opinion).