Message: Hugh Raymond Griffiths vs Australia. Message N 1973/2010. The Views were adopted by the Committee on October 21, 2014.
In 2010, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
Subject of the message: detention pending extradition.
Substantive issues: the right to liberty and security of person; the right to a fair trial; protection of foreigners from arbitrary expulsion; the right to an effective remedy.
Legal positions of the Committee. The Committee recalls its jurisprudence that, in order for detention not to be classified as arbitrary, it should not last beyond the period for which the State party can provide adequate justification (paragraph 7.2 of the Views) (See K. v. Australia, paragraph 8.2.).
The Committee recalls that judicial review of the legality of detention in accordance with article 9, paragraph 4, of the Covenant is not limited solely to the compliance of such detention with domestic law, but should include the possibility of deciding on release if the detention is incompatible with the requirements of the Covenant, in particular with the requirements of article 9, paragraph 1, of the Covenant (See K. v. Australia, paragraph 8.3; communication No. 1014/2001, Baban v. Australia, Views adopted on 6 August 2003, paragraph 7.2.). Crucial for the purposes of paragraph 4 of art. 9 has the effect that such a review should be real in its consequences, and not just formal (paragraph 7.5 of the Considerations) (See A. v. Australia, paragraph 9.5.).
The Committee's assessment of the factual circumstances. In the present case, the author's uninterrupted detention lasted for more than two years and five months, during which he used the appeal mechanism against the Federal Court's decision of 7 July 2004 that he should be extradited from Australia to the United States. Although the State party cites specific reasons to justify his detention, the Committee notes that it has not proved that these reasons justify the author's continued detention, given the length of time and new circumstances. In particular, the State party has not demonstrated that, given the special circumstances in which the author found himself, he did not have at his disposal less coercive means to achieve the same goals, i.e. compliance with the rules of the State party and its obligations in the field of international cooperation on extradition by, for example, the introduction of a requirement for periodic appearance. to register, use a guarantee, or other conditions that would take into account his personal circumstances. In particular, the State party has failed to demonstrate whether due consideration was given to the author's arguments in support of his release, such as compliance with the conditions of his previous bail during the same extradition proceedings, the low risk of escape, lack of a previous criminal record or the state of his health (paragraph 7.2 of the Considerations).
The Committee also notes, and this has never been refuted by the State party, that pre-extradition detention is in no way limited by Australian law in terms of time and that the general rule, in accordance with the jurisprudence of the High Court on Extradition Cases, is to keep persons "in custody, regardless of whether their detention is necessary or not.""... The Committee takes into account the author's argument that there is no indication in both domestic legislation and the judicial practice of the High Court of Justice regarding the timing of the extradition decision by the Minister of Justice and Customs, which is expected to be made "at the first reasonable opportunity". Noting that in the present case it took more than 15 months to reach such a decision, namely from 6 September 2005. As of December 22, 2006, the Committee considers that the State party has failed to demonstrate how this period of time meets the requirement of "reasonable opportunity" and why the continued detention of the author was necessary and justified during this particular period of time. In these circumstances, whatever the reasons for the initial detention, the continued detention of the author pending extradition without sufficient individual justification is, in the Committee's view, arbitrary and constitutes a violation of article 9, paragraph 1, of the Covenant (para. 7.3 Considerations).
The Committee also takes into account the author's claim under article 9, paragraph 4, of the Covenant that he did not have effective and accessible legal remedies available to him to obtain a judicial review of his continued detention, which became arbitrary because of its disproportionate duration. It notes that the State party does not agree with the author's claim, stating that such a review was possible through an application for bail. Referring to its Views on the admissibility of the communication, as well as to Australian law and the jurisprudence of the High Court, the Committee notes that bail can be granted by a court only if the person concerned can prove the existence of "special circumstances" that must be "extraordinary and not related to factors that apply to all persons, to be extradited", as well as to demonstrate a "high probability of successful consideration" of the application for bail. It takes into account the author's explanation that the length of detention in itself does not relate to "special circumstances" according to the jurisprudence of the High Court and that a person is required to prove a change in circumstances in order to justify a new application for bail if the previous application was rejected. It also notes that the State party has not contested the claim that persons at risk of extradition are usually detained regardless of the need for such a measure (paragraph 7.4 of the Views).
In the present case, the author was held in pre-extradition detention for more than two years without any possibility of obtaining a judicial review on the merits of whether his continued detention was consistent with the Covenant or being released on that basis. In view of these circumstances, as well as in the light of its conclusions in accordance with paragraph 1 of art. 9 Of the Covenant, the Committee considers that the author was effectively unable, by virtue of the State party's legislation and practice, to avail himself of effective judicial proceedings in order to achieve a review of the legality of his continued detention, since the courts were not authorized to consider whether his detention continued to be lawful after the expiration of time, and to decide on his release on this basis. Furthermore, it concludes that the State party has not demonstrated that the author had at his disposal effective remedies in connection with his allegations under article 9, paragraph 4, of the Covenant. Thus, in the Committee's opinion, such a lack of opportunity to protest the fact of detention, which contradicted or became contrary to paragraph 1 of article 9, constitutes a violation of paragraph 4 of article 9 of the Covenant (paragraph 7.5 of the Views) (See K. v. Australia, paragraph 8.3.).
Conclusions of the Committee. The Human Rights Committee considers that the facts presented to it reveal a violation of the author's rights under paragraphs 1 and 4 of articles 9 of the Covenant (paragraphs 8 of the Views).