Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, NEW ZEALAND; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.22-08615(E)
Human Rights Committee
Views adopted by the Committee under article 5 (4)
of the Optional Protocol, concerning communication
No. 3162/2018*, **
Communication submitted by:
Camille Iriana Thompson (represented by
counsel, Douglas A. Ewen)
Alleged victim:
The author
State party:
New Zealand
Date of communication:
21 February 2017 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State party on 27 March 2018 (not issued in
document form)
Date of adoption of Views:
2 July 2021
Subject matter:
Compensation for wrongful arrest and detention
Procedural issues:
None
Substantive issues:
Arbitrary detention; effective remedy
Articles of the Covenant:
2 (3) read in conjunction with 9 (1); and
9 (1) and (5)
Articles of the Optional Protocol:
None
1.
The author of the communication is Camille Iriana Thompson, a national of New
Zealand born on 28 September 1986. She claims that the State party has violated her rights
under article 2 (3) read in conjunction with article 9 (1), and article 9 (1) and (5), of the
Covenant. The Optional Protocol entered into force for the State party on 26 August 1989.
The author is represented by counsel.
Facts as submitted by the author
2.1
On 28 July 2010, the author was sentenced to 100 hours of community work and nine
months of supervision by probation officers, for an unspecified offence. On 15 May 2012, a
probation officer filed an application with Wellington District Court for cancellation of the
community work sentence. On 6 June 2012, the application was considered by a judge, who
* Adopted by the Committee at its 132nd session (28 June–23 July 2021).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Yadh Ben Achour, Arif Bulkan,
Mahjoub El Haiba, Furuya Shuichi, Carlos Gómez Martínez, Duncan Laki Muhumuza, Photini
Pazartzis, Hernán Quezada Cabrera, Vasilka Sancin, José Manuel Santos Pais, Soh Changrok,
Kobauyah Tchamdja Kpatcha, Hélène Tigroudja, Imeru Tamerat Yigezu and Gentian Zyberi.
United Nations
CCPR/C/132/D/3162/2018
International Covenant on
Civil and Political Rights
Distr.: General
7 June 2022
Original: English
CCPR/C/132/D/3162/2018
2
adjourned the matter until 25 June 2012 on the grounds that the court had not been provided
with proof of service of the application. On 9 June and 23 July 2012, the matter was adjourned
again for the same reason.
2.2
On 18 July 2012, the author appeared before Wellington District Court on unrelated,
unspecified charges and was sentenced to 15 months of intensive supervision. A corrections
officer then asked the judge to simultaneously process the application to cancel the author’s
prior community work sentence. The judge agreed, granted the application and cancelled the
community work sentence. Later that day, the charges for which the author had been
sentenced were updated in the court’s electronic case management system. An order
sentencing the author to 15 months of intensive supervision was prepared and was signed by
the registrar. However, in an apparent clerical error, the community work sentence relating
to the prior offence was not cancelled by the court either in its record sheets or in its electronic
case management system.
2.3
On 23 July 2012, the application to cancel the author’s community work sentence was
examined again by a different judge at Wellington District Court. That judge was unaware
that the same sentence had been cancelled five days earlier. When the author did not appear
before the judge, the latter issued a warrant for the author’s arrest.
2.4
On 31 July 2012, at 6.50 p.m., the author was arrested pursuant to the warrant. She
was searched upon arrival at the police station and was held overnight. The next morning, on
1 August 2012 at 10.12 a.m., she appeared before Wellington District Court, whereupon she
was promptly released by the presiding judge. She had spent approximately 15 hours and 22
minutes in custody.
2.5
The author sought compensation for her arrest and detention. On 24 August 2012, she
sent a statement of her claims to the Crown Law Office seeking an amiable solution; she then
sent a reminder on 26 February 2013. The author claims that she did not receive any response
to her statement.1
2.6
On 10 April 2013, the author filed a civil claim for compensation before the High
Court of New Zealand. Because district court judges enjoy immunity from civil suits when
acting in their judicial capacity, the author named the Attorney-General as the defendant in
her claim. The author presented tort-based claims of false imprisonment, breach of statutory
duty, negligence by court staff, systemic negligence in failing to train court staff properly,
and arbitrary arrest and detention in breach of section 22 of the New Zealand Bill of Rights
Act 1990. Under that provision, “everyone has the right not to be arbitrarily arrested or
detained”. On 24 September 2014, the High Court dismissed the author’s claims. The claims
of false imprisonment, breach of statutory duty, negligence and systemic negligence were
dismissed on the ground that section 6 (5) of the Crown Proceedings Act 1950 barred all tort-
based claims against the Crown for judicial acts or omissions.2 The claims of arbitrary arrest
and detention were dismissed on the grounds that the author’s detention was not unlawful,
because it had been effected pursuant to a warrant issued by a judge. While the factual basis
on which the warrant was issued was wrong, the judge in question had acted on a reasonable
assumption based on the evidence known to her.
2.7
On 23 May 2016, the Court of Appeal dismissed the author’s appeal against the
decision of the High Court. However, in its decision, the Court of Appeal reversed the finding
of the High Court that the author had not been unlawfully and arbitrarily arrested and detained.
The Court of Appeal found that the author’s arrest and detention were arbitrary and unlawful
for two reasons: (a) when the warrant was issued, there was no outstanding application for
the author to be brought before the court; and (b) the judge had issued the warrant of her own
1 The author provided a copy of a response from the Crown Law Office regarding her claim dated 10
April 2012. In the response, the Crown Law Office stated that the author’s claim had no realistic
prospect of success on account of prior jurisprudence on the same issue, and that there would be no
costs if the author discontinued her claim.
2 Sect. 6 (5) of the Crown Proceedings Act 1950 provides: “No proceedings shall lie against the Crown
by virtue of this section in respect of anything done or omitted to be done by any person while
discharging or purporting to discharge any responsibilities of a judicial nature vested in him or her, or
any responsibilities which he or she has in connection with the execution of judicial process.”
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3
motion, not pursuant to an application by a probation officer as required under section 72 (3)
of the Sentencing Act. The Court of Appeal therefore concluded that the author’s rights under
article 22 of the Bill of Rights Act had been violated.
2.8
Nevertheless, the Court of Appeal considered that the author was not entitled to
compensation for the period of her unlawful detention, unless the Crown considered it
appropriate to make an ex gratia payment. The Court of Appeal noted that the proximate or
effective cause of the author’s unlawful arrest and detention was the issuance of the warrant,
which was a judicial act. The Court of Appeal then reasoned that pursuant to the judgment
of the Supreme Court in a separate case, Attorney-General v. Chapman,3 there was no State
liability for actions of the judiciary that resulted in a breach of the Bill of Rights Act. The
Court of Appeal recalled that in Attorney-General v. Chapman, the Supreme Court had
determined that: (a) broad common law judicial immunity applied to actions taken in the
bona fide discharge of judicial responsibilities; (b) the judiciary was independent from the
executive branch, and its members were not employees or agents of the Crown; (c) under the
principle of judicial immunity, the Crown could not be held vicariously liable for the acts of
persons discharging functions of a judicial nature; (d) as a matter of policy, to allow
compensation claims for judicial breach of the Bill of Rights Act would be “as inimical to
judicial independence as permitting claims to be advanced against judges personally”; and
(e) it was unnecessary to provide financial remedies for judicial acts, because of remedial
protections, such as the ex gratia compensation scheme available to individuals who had
served all or part of a prison sentence before the conviction was quashed on appeal, and the
habeas corpus petition procedure available to individuals alleging a breach of section 22 of
the Bill of Rights Act. The Court of Appeal acknowledged that the fact that the author had
no right to damages in respect of the period for which she had been unlawfully detained
seemed unsatisfactory, but it did not consider that the law allowed for such relief.
2.9
On 17 June 2016, the author applied for leave to appeal the decision of the Court of
Appeal to the Supreme Court. On 7 October 2016, the Supreme Court denied her application
on the grounds that her claim was governed by its recent judgment in Attorney-General v.
Chapman, from which she had not sufficiently distinguished her case. The author maintains
that she has exhausted domestic remedies.
Complaint
3.1
The author alleges that by arbitrarily arresting and detaining her, and by failing to
subsequently compensate her, the State party violated her rights under article 2 (3) read in
conjunction with article 9 (1), and article 9 (1) and (5), of the Covenant. The Court of Appeal
acknowledged that the author’s arrest and detention from 31 July 2012 to 1 August 2012 had
been arbitrary and unlawful. Thus, her arrest and detention constitute a violation of article 9
(1) of the Covenant.
3.2
The State party’s failure to compensate the author constitutes a violation of article 9
(5) of the Covenant. The Court of Appeal erroneously considered that there was a tension
between the need to ensure judicial independence and the fair trial rights of criminal
defendants. There is no such tension, as those two guarantees operate in harmony with each
other.
3.3
The reliance of the domestic courts on the jurisprudence of the Supreme Court in
Attorney-General v. Chapman is misplaced, because in that case, the claimant was not
exonerated after having been wrongfully convicted; thus, the State party did not have an
obligation to compensate him under article 14 (6) of the Covenant. The State party has
entered a reservation to article 14 (6) of the Covenant, stating that it “reserves the right not
to apply article 14 (6) to the extent that it is not satisfied by the existing system for ex gratia
payments to persons who suffer as a result of a miscarriage of justice”. While article 14 (6)
of the Covenant may have been applicable in Attorney-General v. Chapman, it is not
applicable in the author’s case, which gives rights to obligations of the State party under
article 9 (5) of the Covenant.
3 Attorney-General v. Chapman [2011] NZSC 110, [2012] 1 NZLR 462 and [2011] 9 HRNZ 257.
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4
3.4
Moreover, the rule in Attorney-General v. Chapman constitutes common law, not
statutory authority. It is inconsistent with previous jurisprudence (Simpson v. Attorney-
General (Baigent’s case)),4 in which the Court of Appeal confirmed that the enactment of the
Bill of Rights Act 1990 required the award of an effective remedy.
3.5
By failing to compensate the author, the State party has committed a serious and
continuing violation of the Covenant and customary international law, under the formulation
adopted in the International Law Commission’s articles on responsibility of States for
internationally wrongful acts.
3.6
The author has been deprived not only of compensation to which she is entitled under
article 9 (5) of the Covenant, but also of any other remedy to this date for her arbitrary and
unlawful detention and arrest. This amounts to a violation of article 2 (3), read in conjunction
with article 9, of the Covenant. To date, no one in the Ministry of Justice has so much as
offered an apology for her arrest and detention. She had no right of appeal against the issue
of the warrant. Furthermore, the warrant was issued ex parte, so she was unaware of its
existence. An application for judicial review or habeas corpus, while theoretically available,
could not have been drafted and filed prior to the unlawfulness of her detention becoming
apparent, let alone heard and disposed of by the High Court. The theoretical nature of these
avenues of challenge cannot be viewed as effective within the meaning of article 2 (3) of the
Covenant. The author could not have filed a complaint against the judge under the Judicial
Conduct Commissioner and Judicial Conduct Panel Act 2004. It is stated in section 16 (1) (f)
of that Act that the Act does not apply to a judicial decision, or other judicial function, that
is or was subject to a right of appeal or right to apply for judicial review. The Act does not
make any provision for remedies for individuals who have been aggrieved by a judge’s
conduct. At most, the Act may lead to a recommendation to the Attorney-General that the
judge’s conduct warrants removal from office. Had the author recovered compensation,
based on comparable awards in superior courts, she would have likely received payment of
over $NZ 20,000, in addition to the payment of legal costs.
3.7
In a further submission dated 14 August 2018, the author states that as remedies, she
wishes to receive compensation of $NZ 20,000 (approximately equivalent to US$ 14,384),
plus interest accruing from the date of the violation. In domestic law, contumelious disregard
of a legal obligation may give rise to an award of exemplary damages. The ongoing,
conscious and flagrant breaches of the obligation under article 9 (5) of the Covenant exhibit
such contumely. However, in the context of proceedings before the Committee, exemplary
damages may be viewed as paradigmatically inapt. The author recognizes that the amount of
compensation would be for the State party to address, should the Committee find that her
rights were violated. The author also seeks an appropriate apology and reimbursement of her
legal costs. She requests that the Committee declare that the State party should harmonize its
domestic law (specifically by amending the New Zealand Bill of Rights Act 1990) with the
obligation under the Covenant to provide compensation for unlawful arrest and detention,
even when such arrest and detention is attributable to the judicial branch of government.
State party’s observations on the merits5
4.1
In its observations dated 26 September 2018, the State party recalls the facts of the
case and admits that it violated the author’s rights under article 9 (1) of the Covenant by
arbitrarily and unlawfully arresting and detaining her. This breach was already established
by domestic courts, in the judgment of the Court of Appeal. The author was detained
overnight, pursuant to an invalid warrant for her arrest. The warrant had been issued due to
a judicial error. The author spent approximately 15 hours and 22 minutes in custody.
4.2
Apart from the violation of article 9 (1) of the Covenant, already established at the
domestic level, the State party maintains that the communication is without merit. The State
party did not violate the author’s rights under articles 2 (3) or 9 (5) of the Covenant. The
author has received an effective remedy for the breach of article 9 (1) of the Covenant. For
the reasons explained below, the absence of an enforceable right to compensation in the
4 Simpson v. Attorney-General (Baigent’s case) [1994] 3 NZLR 667.
5 The State party does not contest the admissibility of the communication.
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5
narrow circumstances of the author’s case does not breach her rights under article 9 (5) of
the Covenant, which must be read so as to prevent erosion of judicial independence. A limited
reading of article 9 (5) of the Covenant is necessary in order to ensure that other rights
requiring a fair and dispassionate legal system, including those under article 14 of the
Covenant, are not impaired by the erosion of judicial independence.
4.3
Remedies, including an enforceable right to public law damages where the breach is
occasioned by the executive branch of government, are available for arbitrary detention that
is in breach of section 22 of the Bill of Rights Act. These remedies were developed by the
courts as a means of giving effect to article 2 (3) of the Covenant. However, the Supreme
Court concluded in Attorney-General v. Chapman6 that the remedy of damages may not be
awarded in relation to unlawful conduct resulting from judicial error. The Supreme Court
concluded that the availability of such a remedy would undermine judicial independence in
New Zealand, which would impact on other protected interests such as fair trial rights. The
author’s case fell into the narrow set of circumstances in which a remedy of damages could
not be awarded. However, there are other effective remedies for judicial error such that a
remedy of damages is not necessary.
4.4
In the present case, despite the unavailability of damages, the author did receive an
effective remedy, and the State party did not violate article 2 (3) of the Covenant. The author
was arrested pursuant to the erroneous warrant on the evening of 31 July 2012, after the
district court sitting hours had concluded. Her case was called in the district court the
following morning, and she was released as soon as the mistake leading to the warrant being
issued was recognized. Thus, the author obtained an appropriate remedy through her swift
release at the earliest possible opportunity. Had she not been released, she could have filed
an application for a writ of habeas corpus. However, her release from custody was prompt,
and there was therefore no need for her to seek that remedy. The author also obtained a
determination by the Court of Appeal that her rights under section 22 of the Bill of Rights
Act had been violated. Judicial recognition of breach of a protected right, and thus vindication
of the claimant’s rights, is an important remedy in New Zealand law.
4.5
The State party provides additional details about the decision of the Supreme Court in
Attorney-General v. Chapman.7 Mr. Chapman was convicted of sexual offending and was
sentenced to six years’ imprisonment. He appealed to the Court of Appeal. Legal aid was
declined and the appeal was dismissed without an oral hearing, under procedures later found
by the Privy Council to have been unlawful and in breach of the Bill of Rights Act. After a
new appeal procedure, Mr. Chapman’s conviction was quashed, and he was eventually
discharged without a retrial when a key witness refused to testify. He then took action against
the Attorney-General, claiming damages for the breaches of rights by the judges who had
dismissed his initial appeal.
4.6
The Supreme Court accepted that the dismissal of Mr. Chapman’s first appeal under
the unlawful legal aid system had breached his rights under the Bill of Rights Act to a fair
trial and to observance of the principles of natural justice. However, the Court also
determined that Mr. Chapman did not have a viable claim against the Attorney-General for
damages under the Bill of Rights Act. This was on the basis, principally, that allowing a claim
of this kind to proceed would be “as inimical to those public interest considerations as
allowing a personal claim against judges”. The Court noted the well-established position at
common law that the judges of superior courts have always had personal immunity from suit,
and observed that the Crown could not be vicariously liable for the actions of judges. The
independence of the judiciary from the executive branch, within a constitution that reflects
the separation of powers, has long been seen as inconsistent with judges being employees or
agents of the Crown who act on its behalf.
4.7
The Supreme Court then considered that among the various policy justifications that
underpinned personal judicial immunity, three such justifications were of principal
importance in a determination that a remedy of public law damages was not available for
breaches of the Bill of Rights Act by the judiciary, namely: (a) the desirability of achieving
6 Attorney-General v. Chapman [2011] NZSC 110, [2012] 1 NZLR 462 and [2011] 9 HRNZ 257.
7 Ibid.
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6
finality; (b) the need to protect and promote judicial independence; and (c) the fact that
alternative remedies for breaches of the Bill of Rights Act by the judiciary are available
(including through the appellate process.) The Court then went on to examine each of those
three factors in turn.
4.8
With respect to the desirability of achieving finality in the outcome of litigation, the
Court explained that if civil actions against the State could be maintained on the grounds that
the judge had breached the plaintiff’s rights, collateral challenges would be brought with the
same consequences that personal judicial immunity is designed to guard against. This would
cause litigants to experience harassment by the justice system and lose confidence in the
effective functioning of the rule of law. As a result, an institutional immunity is necessary in
order to preserve public confidence in the fair and effective administration of justice.
4.9
With respect to the need to promote and protect judicial independence, the Court
stated that when discharging its obligations under the Bill of Rights Act, the judiciary must
always act and be seen to act independently of extraneous influences, in particular of the
executive branch. If the executive government became liable for damages for judicial
breaches of rights, members of the public engaged in or observing litigation would likely
become concerned that the prospect of future litigation might distract the judge from acting
in an entirely independent way. The judge could be exposed to indirect pressure to minimize
the risk of claims based on government liability. Accordingly, public confidence in the
effective administration of the law would diminish. The Court further stated that if such
claims were permitted, judges would be pressed by the defendant Government to be witnesses
in proceedings brought as a result of their actions. It is undesirable to have judges give
evidence concerning their conduct and such a prospect would in itself give rise to a perception
that judges may come under pressure in their decision-making if they believe they may be
questioned concerning it at a later stage.
4.10
The Supreme Court also stated that it would be unwise to assume that claims in
relation to judicial conduct would be rare. Despite the bar on bringing personal claims against
judges, proceedings against judges from disaffected litigants, as well as repeated and hopeless
recall applications, are a regular feature of litigation. There is also occasional personal
harassment of judges. The Court concluded that there would be no shortage of potential
plaintiffs if litigation in relation to judicial conduct were held to be permissible. The Court
reasoned that it would be speculative to assume that such claims would have no impact on
judicial behaviour. Even though judges would ordinarily be entitled to be indemnified by the
State, this would nonetheless still be inimical to judicial independence.
4.11
The Supreme Court also considered that allowing such claims to proceed would
require the executive Government, as a defendant to such a claim, to defend actions brought
in relation to judicial conduct. Judges would be required to cooperate with the State in
defence of such actions. To an outside observer, the executive Government would appear to
be defending the judge, and the judge would be helping the Government. Making the
Attorney-General, a member of executive Government, financially responsible for judicial
actions would imply that judges were acting on behalf of executive government when
exercising judicial functions. Constitutionally, the Government may not interfere with the
judicial process without breaching conventions. If, however, the executive branch became
liable to compensate for judges’ constitutionally wrongful acts, that would likely result in
political pressures, direct and indirect, for accountability of judges to the executive. For those
reasons, the Court concluded that “allowing compensation claims for judicial breach of the
Bill of Rights Act would be as inimical to judicial independence as permitting claims to be
advanced against judges personally”.
4.12
The Court then explained that the following features of the justice system operated to
prevent rights breaches and provide adequate remedies for such breaches when they did occur:
(a) appeal against, review of, or rehearing of decisions; (b) civil proceedings in respect of
actions of judicial officers not taken in the exercise of their judicial functions; (c) criminal
prosecution in respect of the corrupt exercise of judicial functions; (d) removal processes for
serious judicial misbehaviour or incapacity; and (e) the regime provided for under the Judicial
Conduct Commissioner and Judicial Conduct Panel Act 2004, for investigating complaints
against judges and addressing them according to the Commissioner’s view of their
seriousness.
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4.13
The Supreme Court therefore concluded that the same public policy reasons
supporting personal judicial immunity also justified excluding Crown liability for judicial
breaches of the Bill of Rights Act. Rather than better protecting rights, the Court held that
permitting payment of damages from the executive for judicial breaches “would be
destructive of the administration of justice in New Zealand and ultimately judicial protection
of human rights in our justice system”. Further, damages for such breaches are unnecessary
to ensure effective remedies for breaches.
Author’s comments on the State party’s observations on the merits
5.1
In her comments dated 23 November 2018, the author cites a dissenting opinion in
Attorney-General v. Chapman.8 The judge who authored the opinion considered that the
principles of judicial independence were not compromised by allowing a compensatory
remedy against the State for judicial breaches of the Bill of Rights Act. The author also cites
a concurring opinion issued in the same case, in which a judge placed particular emphasis on
the principle that judicial error amenable to appellate correction was unlikely to require a
compensatory remedy. The author argues that in her case, appellate correction of the unlawful
act in question was impossible. Indeed, the Court of Appeal accepted that no such avenue
was available to her. The reasoning of the plurality of the Court in Attorney-General v.
Chapman is permeated by the view that little weight should be placed on the State party’s
international legal obligations, including those under the Covenant, unless they are
incorporated into domestic law and in the clearest of terms.
5.2
The Committee has previously determined that State liability attaches to judicial
extensions of otherwise lawful and authorized detention. 9 The Court of Justice of the
European Union has rejected the proposition that State liability encroaches on judicial
independence.10 Likewise, the Grand Chamber of the European Court of Human Rights has
rejected the proposition that the State’s fundamental obligation to ensure judicial
independence and personal judicial immunity results in State immunity from the obligation
to pay compensation.11 The Basic Principles on the Independence of the Judiciary also
support the existence of a compensatory right against the State for judicial breaches.
Moreover, the Special Rapporteur on the independence of judges and lawyers has
emphasized that because both the judiciary and the public prosecutor’s office are State
institutions, their actions or omissions directly engage the responsibility of the State.12 The
need for judicial accountability is also noted in the preamble to the Bangalore Principles of
Judicial Conduct, which are applicable in New Zealand.13 Neither judicial independence nor
accountability constitutes an end in and of itself. Without accountability, judicial
independence is dangerously weakened.
5.3
The practices of other States do not support the State party’s contention that
exceptions may apply to the obligation to pay compensation under article 9 (5) of the
Covenant. The State party has been unable to identify uniform or prevailing State practices
to support the contention that State immunity from suit for judicial acts is an essential
component of judicial independence. In the case of Köbler v. Republik Österreich before the
Court of Justice of the European Union, there was no State consensus on the issue of State
liability for judicial acts. In the common law tradition, to which the State party belongs,
effective remedy clauses in domestic constitutions have been interpreted as giving rise to
State liability for judicial breach.14 In the United Kingdom of Great Britain and Northern
8 Attorney-General v. Chapman [2011] NZSC 110, [2012] 1 NZLR 462 and [2011] 9 HRNZ 257.
9 The author cites Human Rights Committee, Van Alphen v. Netherlands, communication No.
305/1988.
10 The author cites Court of Justice of the European Union, Köbler v. Republik Österreich,
case C-224/01, para. 42.
11 The author cites European Court of Human Rights, McFarlane v. Ireland, application No. 31333/06,
judgment of 10 September 2010, para. 121.
12 The author cites A/HRC/26/32, para. 70.
13 The author cites the Bangalore Principles (E/CN.4/2003/65).
14 The author cites Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) [1979] AC 385,
[1978] 2 WLR 902 and [1978] 2 All ER 670 (Privy Council).
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8
Ireland, compensatory remedies are available for judicial breaches.15 The State party could
legislate to implement a remedy regime in the same manner as the Parliament of the United
Kingdom. It has yet to do so, and this gives rise to the likelihood of ongoing breaches of the
obligation under article 9 (5) of the Covenant.
5.4
Contrary to the position taken by the State party and its courts, the possibility to apply
for a writ of habeas corpus does not constitute compensation under article 9 (5) of the
Covenant. Such an application would, at best, mitigate the damage caused. The argument of
the Supreme Court that an action against the State for judicial error may require the judiciary
to participate in litigation at the expense of its perceived independence is fallacious. There is
no more need for a judge to become involved in litigation over a breach of article 9 of the
Covenant than there is for judges to take an active role in an appeal against one of their
judgments. At the appellate level, the appellate court looks to identify remediable error, and
once an error has been established, an inquiry is made as to loss. This process does not require
a judicial officer to support the defence of the State, or to give evidence in the appellate
proceeding. The inquiry will, by its nature, focus less on the impugned judicial act and more
on the effects that the act has had on the affected party.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
6.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement.
6.3
The Committee notes that the State party has not contested the admissibility of the
communication, or the author’s argument that she exhausted all available domestic remedies,
as required under article 5 (2) (b) of the Optional Protocol. The Committee also notes that
the author raised the substance of her claims under the Covenant before the Court of Appeal
and the Supreme Court of New Zealand. Accordingly, the Committee considers that article
5 (2) (b) of the Optional Protocol does not constitute an obstacle to the examination of the
present communication.
6.4
In the Committee’s view, the author has sufficiently substantiated, for the purposes of
admissibility, her claims under article 2 (3) read in conjunction with article 9 (1), and article
9 (1) and (5), of the Covenant. The Committee thus declares those claims admissible and
proceeds to examine them on their merits.
Consideration of the merits
7.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
7.2
The Committee notes that during domestic proceedings, the Court of Appeal
determined that the author’s arrest and detention had been both unlawful and arbitrary. The
Committee also notes that the State party acknowledges that it violated the author’s rights
under article 9 (1) of the Covenant by arbitrarily and unlawfully arresting and detaining her
for approximately 15 hours and 22 minutes on 31 July and 1 August 2012. As there is no
dispute between the parties on this issue, the Committee accepts their position that the facts
before the Committee disclose a violation of the author’s rights under article 9 (1) of the
Covenant.
7.3
The Committee also takes note of the author’s claim that she is entitled to
compensation for the arrest and detention, under article 9 (5) of the Covenant. The Committee
recalls that article 9 (5) of the Covenant obliges States parties to establish the legal framework
15 The author cites the Human Rights Act 1998; and LL v. Lord Chancellor [2017] EWCA Civ 237,
[2017] 4 WLR 162, [2017] 2 FLR 1429 and [2017] WLR (D) 259.
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within which compensation may be afforded to victims of unlawful arrest or detention, as a
matter of enforceable right and not as a matter of grace or discretion.16 The remedy must not
exist merely in theory but must operate effectively, and payment must be made within a
reasonable period of time.17 Article 9 (5) of the Covenant does not specify a precise form of
procedure, which may include remedies against the State itself or against individual State
officials responsible for the violation, so long as they are effective.18 Article 9 (5) of the
Covenant does not require that a single procedure be established providing compensation for
all forms of unlawful arrest, but only that an effective system of procedures exist that provides
compensation in all of the cases covered by article 9 (5) of the Covenant. 19 The latter
provision does not oblige States parties to compensate victims sua sponte, but rather permits
them to leave commencement of proceedings for compensation to the initiative of the
victim.20
7.4
The Committee notes that while the State party’s domestic legislation and common
law generally provide for compensation for wrongful arrest and detention, an exception exists
whereby compensation is not required to be paid where there has been a breach of the Bill of
Rights Act by the judicial branch of government.21 The Committee observes that the author
commenced proceedings on her own initiative to request compensation from the domestic
authorities, without success. The Committee notes the State party’s argument that the author
received an appropriate remedy through her swift release at the earliest possible opportunity,
and, had she not been released, she would have had access to the separate remedy of an
application for a writ of habeas corpus. The Committee observes that the author spent less
than one full day in detention and was promptly released upon discovery by the court of the
error that had prompted her arrest. However, the Committee notes that releasing an individual
from unlawful detention – regardless of the duration of the detention – does not fulfil a State
party’s obligation to provide compensation within the meaning of article 9 (5) of the
Covenant.22
7.5
The Committee notes the detailed policy arguments set forth by the State party and its
courts, to the effect that payment of compensation for judicial breaches of rights would
undermine judicial independence. Notwithstanding, the Committee observes that the plain
language of article 9 (5) of the Covenant does not allow for exceptions to the requirement of
States parties to pay compensation for unlawful arrest or detention. The Committee therefore
considers that even in the present case, where the author’s arrest and detention resulted from
unintentional error by the State party’s authorities, which promptly released her upon
discovering the error, the obligation to pay compensation under article 9 (5) of the Covenant
still applies.23
7.6
With respect to the State party’s arguments regarding the potential of an unrestricted
compensation requirement to adversely affect the decision-making of judges, the Committee
also observes that the obligation under article 9 (5) of the Covenant does not require the
establishment of individual liability of judges or other government agents. The Committee
further recalls that the financial compensation required by article 9 (5) of the Covenant relates
specifically to the pecuniary and non-pecuniary harm resulting from the unlawful arrest or
detention.24 The Committee therefore considers that article 9 (5) of the Covenant is concerned
with providing redress for harm suffered, rather than with ascribing culpability to government
actors for having caused that harm. Accordingly, the Committee considers that in cases where
16 See the Committee’s general comment No. 35 (2014), para. 50.
17 Ibid.
18 Ibid.
19 Ibid.
20 Ibid.
21 See para. 4.13 above.
22 See the Committee’s general comment No. 35 (2014), para. 49: “Whereas paragraph 4 provides a
swift remedy for release from ongoing unlawful detention, paragraph 5 clarifies that victims of
unlawful arrest or detention are also entitled to financial compensation.”
23 See also the United Nations Basic Principles and Guidelines on Remedies and Procedures on the
Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37),
paras. 88 and 90.
24 See the Committee’s general comment No. 35 (2014), para. 52.
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10
error by the judicial branch of government results in unlawful or arbitrary arrest or detention,
compensation to the victim should not undermine judicial independence but rather should
strengthen accountability and trust in the judiciary by providing a remedy for a wrong.
7.7
In the light of its previous findings, the Committee does not deem it necessary to
examine the author’s claim under article 2 (3) read in conjunction with article 9 (1) of the
Covenant.
8.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts before it disclose a violation of the author’s rights under article 9 (1) and (5) of the
Covenant.
9.
Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to
provide the author with an effective remedy. This requires it to make full reparation to
individuals whose Covenant rights have been violated. Accordingly, the State party is
obligated, inter alia, to provide the author with adequate compensation. The State party is
also under an obligation to take all steps necessary to prevent similar violations from
occurring in the future, including by reviewing its domestic legislation, regulations and/or
practices to ensure that individuals who have been unlawfully arrested or detained as a result
of judicial acts or omissions may apply to receive adequate compensation, in accordance with
the obligation set forth in the Covenant.
10.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective remedy when it has been
determined that a violation has occurred, the Committee wishes to receive from the State
party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State party is also requested to publish the present Views and to
have them widely disseminated in the official languages of the State party.