Opinion; Subjects: NEW ZEALAND, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.15-12170(E)
*1512170*
Human Rights Council
Working Group on Arbitrary Detention
Opinion adopted by the Working Group on Arbitrary
Detention at its seventy-second session, 19-28 April 2015
No. 21/2015 (New Zealand)
Communication addressed to the Government on 22 January 2015
Concerning Mr. A, whose name is known to the Working Group on Arbitrary
Detention
The Government has not replied to the communication of 22 January 2015.
The State is party to the International Covenant on Civil and Political Rights.*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the former Commission on Human Rights, which extended and clarified the Working
Group’s mandate in its resolution 1997/50. The Human Rights Council assumed the
mandate in its decision 2006/102 and extended it for a three-year period in its resolution
15/18 of 30 September 2010. The mandate was extended for a further three years in
resolution 24/7 of 26 September 2013. In accordance with its methods of work
(A/HRC/16/47 and Corr.1, annex), the Working Group transmitted the above-mentioned
communication to the Government.
2.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to the detainee) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);
* New Zealand ratified to the International Covenant on Civil and Political Rights on 28 December
1978.
United Nations
A/HRC/WGAD/2015/21
General Assembly
Distr.: General
5 August 2015
Original: English
A/HRC/WGAD/2015/21
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(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law for
reasons of discrimination based on birth; national, ethnic or social origin; language;
religion; economic condition; political or other opinion; gender; sexual orientation; or
disability or other status, and which aims towards or can result in ignoring the equality of
human rights (category V).
Submissions
Communication from the source
3.
Mr. A, born on 21 September 1956, is a national of New Zealand. In 1973, he was
diagnosed with “mild mental retardation”, according to the Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition, also referred to as an “intellectual disability”.
4.
To date, Mr. A has been detained for 45 years in psychiatric institutions or in
prisons. From 1969 to 1993, he was held in psychiatric detention at Kingseat Hospital,
Oakley Hospital, Lake Alice Hospital, Mount Eden Prison and Carrington Hospital. From
1994 to the present, Mr. A has been detained, on a sentence of preventive detention, in
Auckland Prison, Kaitoke Prison (Wanganui), Pohutukawa Unit of Mason Clinic and
Tongariro Prison. Since 1994, brief periods have been spent in psychiatric facilities.
5.
In 1968, at the age of 12, Mr. A was admitted to Kingseat Hospital for allegedly
sexually abusing a young girl. From 1969 to 1989, he was transferred among various
psychiatric hospitals for allegedly committing sexual offences while on leave.
6.
In 1973, at the age of 17, Mr. A was charged with sodomy. He was found to be
legally disabled and unfit to plead. He was therefore committed to Lake Alice Hospital
under the Criminal Justice Act, 1954. In 1984, he was again charged with sodomy and
found to be disabled under the Criminal Justice Act.
7.
In 1989, Mr. A’s legal disability was questioned. He became an informal patient at
Kingseat Hospital until 1992, at which time he had weekend leaves with his mother. In
1993, he became an informal patient and later that year was released and went to live with
his sister in Mangere, South Auckland.
8.
In 1992, the Mental Health (Compulsory Assessment and Treatment) Act came into
force, changing the legal landscape by removing the previous protection from prosecution
and imprisonment accorded to individuals with intellectual disabilities, including those such
as Mr. A with a mild mental retardation. The source submits that this resulted in the courts
having limited options for dealing with persons with an intellectual disability who were
charged or convicted with an imprisonable offence, often resulting in an inappropriate
placement in prison or other place of detention.
9.
In 1994, Mr. A was prosecuted and convicted of unlawful sexual connection with a
minor. On 20 April 1994, the High Court sentenced him to preventive detention with a
minimum period of detention of 10 years without parole pursuant to section 75 of the
Criminal Justice Act, 1985 (now repealed). Under that section, preventive detention could
be imposed if a person has been convicted of a sexual offence under section 128 (1) of the
Crimes Act and if the Court is satisfied that it is necessary for the person to be detained in
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custody for a substantial period. Relying on a 1994 psychiatric report, the Court determined
that Mr. A’s conviction fell under that section. On 7 October 1994, the High Court
sentenced him to a second preventive detention. On 22 May 1995, both sentences of
preventive detention were affirmed by the Court of Appeal. Mr. A remains detained.
10.
The source submits that the detention of Mr. A is arbitrary and falls under categories
I and V on the basis that he has been deprived of his liberty since 1994 for reasons of
discrimination based on disability and that he has been deprived of his liberty since 2004
without any legal basis.
11.
The source submits that when Mr. A was sentenced in 1994 there was no legislative
scheme to ensure that he would be placed in a proper facility, one that would take into
account his intellectual deficiencies and protect his rights, or provide rehabilitation, in
contrast to individuals with mental health concerns, who could be detained in psychiatric
hospitals. In view of the Mental Health (Compulsory Assessment and Treatment) Act,
1992, removing the previous exemption of individuals with intellectual disabilities from
standing trial before criminal courts, the courts sentenced Mr. A to preventive detention in
prison, having no other legitimate domestic law choice. The source argues that this violates
article 7 of the Universal Declaration of Human rights, article 26 of the International
Covenant on Civil and Political Rights and article 13 of the Convention on the Rights of
Persons with Disabilities, as it fails to recognize the rights of the intellectually disabled as a
discrete and vulnerable group to be treated equally before the law.
12.
The source draws attention to paragraph 19 of Human Rights Committee general
comment No. 35, according to which any deprivation of liberty must be necessary and
proportionate, for the purpose of protecting the person in question from harm or for
preventing injury to others. It must be applied only as a measure of last resort and for the
shortest appropriate period of time, and must be accompanied by adequate procedural and
substantive safeguards established by law. In the source’s view, such factors as acceptance
of responsibility, steps taken to avoid reoffending, and predilection and proclivity for
offending should have been assessed in a different light given Mr. A’s intellectual
disabilities, yet they were not.
13.
The source refers to the Working Group’s visit to New Zealand from 24 March to 7
April 2014, at the conclusion of which the Working Group stated that it heard consistent
testimonies that people with intellectual or learning disabilities were at a particular
disadvantage in the criminal justice system. The Working Group stresses that, pursuant to
article 13 of the Convention on the Rights of Persons with Disabilities, persons with
disabilities must be afforded access to justice on an equal basis with others.
14.
The source further submits that meeting the threshold for a sentence of preventive
detention has become more onerous since Mr. A was sentenced in 1994. At that time, a
single psychiatric opinion was required. That requirement has since been amended by the
Sentencing Act, 2002, pursuant to which two health assessors’ reports must be obtained
before a sentence of preventive detention can be handed down. The source argues that were
the sentencing judge to apply this new standard to Mr. A’s case, the threshold to
indeterminately detain him would not be reached.
15.
When a preventive detention sentence has been handed down, the person is entitled
to be considered for parole annually after the expiry of a minimum period without parole.
Hence, in 2004, after the expiry of his 10-year tariff period, Mr. A was eligible to be
considered for parole. That same year, the Intellectual Disability (Compulsory Care and
Rehabilitation) Act, 2003, was implemented, providing for the compulsory care of
offenders with intellectual disabilities. The goal of the Act, it is submitted, is to ensure that
the rights of intellectually disabled offenders are accounted for and protected, effectively to
remedy past legislative discrimination.
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16.
The source submits that multiple psychological reports stated that Mr. A met the
criteria specified in section 7 of the act for the diagnosis of intellectual disability, and was
therefore eligible for a compulsory care order. However, the New Zealand Parole Board has
continuously denied Mr. A’s applications for compulsory care under the statute. In its
determination that he is not eligible for parole, the Board has relied exclusively on the
finding of one psychologist, who stated that it was inappropriate for Mr. A to be transferred
from the criminal justice system to a placement provided under the Intellectual Disability
(Compulsory Care and Rehabilitation) Act, 2003, as he posed too high a risk. Despite
previous counsel’s application for judicial review regarding the decision not to apply for
compulsory care and the subsequent decision to deny parole, Mr. A remains in prison.
17.
For support, the source draws attention to paragraph 21 of Human Rights Committee
general comment No. 35, in which it is stated that when a criminal sentence includes a
punitive period followed by a non-punitive period intended to protect the safety of other
individuals, once the punitive term of imprisonment has been served, to avoid arbitrariness,
the additional detention must be justified by compelling reasons arising from the gravity of
the crimes committed and the likelihood of committing similar crimes in the future. States
should use such detention only as a last resort, and regular periodic reviews by an
independent body must be assured to decide whether continued detention is justified. State
parties must exercise caution and provide appropriate guarantees in evaluating future
dangers. The conditions in such detention must be distinct from the conditions for
convicted prisoners serving a punitive sentence and must be aimed at the detainees’
rehabilitation and reintegration into society.
18.
The source submits that the continuation of Mr. A’s incarceration after 2004,
following the expiry of his 10-year tariff period in prison, is arbitrary and in contravention
of the rights guaranteed to him under article 9 of the International Covenant on Civil and
Political Rights and article 14 of the Convention on the Rights of Persons with Disabilities.
It argues that, given Mr. A’s disabilities, there is no legal basis for keeping him detained in
prison with no plan for integration or rehabilitation, when he should be receiving the
psychological and rehabilitative care the law provides. The decision to keep Mr. A in prison
was taken to protect the public, given that there are less restrictive and more humane
alternatives to prison, and was based on a suspicion that he might reoffend. In the source’s
view, the decision is punitive.
No response from the Government
19.
The Working Group addressed a communication to the Government on 22 January
2015, requesting detailed information about the current situation of Mr. A and clarification
of the legal basis and justification for his continued detention.
20.
The Working Group regrets that the Government has not responded to the
allegations transmitted to it.
21.
Despite the absence of any further information from the Government, the Working
Group has decided to render its opinion in conformity with paragraph 16 of its methods of
work. The Government has not rebutted the prima facie reliable allegations submitted by
the source (see opinion No. 52/2014 (Australia and Papua New Guinea)).
Discussion
22.
The case of Mr. A concerns certain aspects of New Zealand criminal law and its
compliance with international law that have been the subject of the Working Group’s report
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on its 2014 visit to New Zealand (A/HRC/30/36/Add.2)and also of a communication of the
Human Rights Committee.1
23.
Mr. A remains in prison long after having completed his 10-year tariff period, which
expired in 2004. In its submission on Mr. A’s case, the source has drawn the Working
Group’s attention to many aspects relating to the compliance with international law of New
Zealand legislation and practice. In its conclusion, the source submits that Mr. A, who
suffers from serious disabilities, should not be detained in prison with no plan for
integration or rehabilitation. He should receive psychological and rehabilitative care. Mr. A
is kept in prison on the basis of a suspicion that he might reoffend and for the protection of
the public, a decision that is punitive, while less restrictive and more humane alternatives to
prison are available. The Working Group agrees with the source. International law requires
that conditions of detention such as those of Mr. A must be distinct from the conditions of
convicted prisoners serving a punitive sentence.
24.
The Working Group has addressed such issues in its report on its 2011 mission to
Germany (A/HRC/19/57/Add.3).2 The conditions of preventive detention regimes must
satisfy demanding proportionality requirements and establish a difference between the
regimes for preventive detention and for ordinary prison sentences. In its report, the
Working Group discusses the jurisprudence of German courts and the European Court on
Human Rights and, in the present opinion, again confirms that the requirements laid down
in the European Court’s jurisprudence constitute international law.
25.
The Human Rights Committee followed up on these issues in its concluding
observations on the sixth periodic report of Germany (see CCPR/C/DEU/CO/6, para. 14),
adding that States parties must exercise caution and provide appropriate guarantees in
evaluating future dangers. The Committee restated the international law requirements set
out in paragraph 21 of its general comment No. 35 on liberty and security of person, on
detention when a criminal sentence includes a punitive period followed by a non-punitive
period intended to protect the safety of other individuals. The Committee set out the
requirements that must be satisfied to comply with international law and to avoid
arbitrariness under article 9 of the International Covenant on Civil and Political Rights. The
additional detention must be justified by compelling reasons arising from the gravity of the
crimes committed and the likelihood of committing similar crimes in the future. States
should only use such detention as a last resort and regular periodic reviews by an
independent body must be assured to decide whether continued detention is justified. States
parties must exercise caution and provide appropriate guarantees in evaluating future
dangers. The requirement that the conditions in such detention must be distinct from the
conditions for convicted prisoners serving a punitive sentence, restated by the Committee,
determines Mr. A’s case now before the Working Group. The Committee refers to its views
in Allan Kendrick Dean v. New Zealand. Moreover, the requirement that the detention must
be aimed at the detainees’ rehabilitation and reintegration into society, also restated by the
Committee, contributes to the outcome in Mr. A’s case.
26.
The above-mentioned restatements were made by the Human Rights Committee in
its general comment No. 35, under the heading “Arbitrary detention and unlawful
detention”. In paragraph 10 of that general comment, the Committee restated that a person’s
right to liberty is not absolute, that article 9 of the International Covenant on Civil and
Political Rights recognizes that sometimes deprivation of liberty is justified, for example, in
1 Communication No. 1512/2006, Allan Kendrick Dean v. New Zealand, views adopted on 17 March
2009, para. 7.5.
2 See, in particular, paragraph 28, in which it is stated that post-sentence preventive detention is subject
to the ban on retroactivity in a strict sense, and paragraph 29.
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the enforcement of criminal laws, and that paragraph 1 of that article requires that
deprivation of liberty must not be arbitrary and must be carried out with respect for the rule
of law. In paragraph 12 of the general comment, the Committee explained that an arrest or
detention may be authorized by domestic law and nonetheless be arbitrary. Laws and
practices that are in breach of the requirements set out in paragraph 24 above are in breach
of article 9 of the Covenant.
27.
The Working Group concludes that the continuation of Mr. A’s incarceration after
2004 for the protection of the public constitutes arbitrary deprivation of liberty under
category I and a violation of international law for reasons of discrimination under category
V.
Disposition
28.
In the light of the preceding, the Working Group renders the following opinion:
The deprivation of liberty of Mr. A is arbitrary and in contravention of article 9 of
the Universal Declaration of Human Rights and article 9 of the International
Covenant on Civil and Political Rights. It falls into categories I and V of the
categories applicable to the consideration of the cases submitted to the Working
Group.
29.
Consequent upon the opinion rendered, the Working Group requests the
Government of New Zealand to take the steps necessary to remedy the situation of Mr. A
and bring it into conformity with the standards and principles in the Universal Declaration
of Human Rights and the International Covenant on Civil and Political Rights.
30.
The Working Group considers that, taking into account all the circumstances of the
case, the adequate remedy would be to release Mr. A from prison and accord him an
enforceable right to compensation in accordance with article 9 (5) of the International
Covenant on Civil and Political Rights.
[Adopted on 29 April 2015]