Human Rights, OPCAT and ‘closed environments’

Dr Bronwyn NaylorPresentation for DHS and DoH

9th September 2011Dr Bronwyn Naylor

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Outline

1 My research

2 Human Rights and closed environments

3 Torture, cruel, inhuman or degrading treatment or punishment

4 Application to closed environments

5 The Optional Protocol to CAT

My research Australian Research Council-funded project:

‘Applying Human Rights Legislation In Closed Environments’

‘any place where persons are or may be deprived of their liberty by means of placement in a public or private setting in which a person is not permitted to leave at will by order of any judicial, administrative or other order, or by any other lawful authority relevant to the project's goals.’

Prisons, police cells, immigration detention, psychiatric and disability facilities.

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Some rights affected by being held in detention

Protection from cruel, inhuman or degrading treatment or punishment: s.10 Vic Charter

Right to humane treatment when deprived of liberty (Ch s.22(1)

freedom of movement (Ch s.12);

Privacy, family ‘not unlawfully or arbitrarily interfered with’ (Ch s.13)

Right to practice culture and religion (Ch s.19)

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Limitations on rights?

s.7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom

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Cruel, inhuman or degrading treatment or punishment

Cruel – or inhuman – or degrading

Inhuman: includes treatment that ‘deliberately causes severe suffering, mental or physical’

Degrading: arousing feelings of fear, anguish and inferiority, capable of humiliating and debasing

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Treatment or punishment

- not ‘normal’ punishment, eg prison sentence as such

- Corporal punishment has been held to breach the provision (UK)

- involuntary medical treatment? Courts tend not to intervene.

09-085 [2009] VMHRB

- measures which are therapeutic necessities will not be regarded as cruel, inhuman or degrading.  But even a therapeutic intervention can potentially constitute cruel, inhuman or degrading treatment where the side effects of the treatment reach a ‘minimum level of severity’. 

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Application (1) Brough v Australia (2006) Facts: 17 yo Aboriginal youth with mild intellectual disability.

Held in solitary confinement; lights on all the time; stripped to underwear and without a blanket.

Held: given his youth, disability and status as an Aboriginal, the treatment violated article 10 ICCPR - the right to humane treatment when deprived of liberty (Ch s.22(1) )

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Application (2) Kupczak v Poland (2011) Facts; K disabled from car accident: pain, managed with morphine

pump. Held in detention 2+ years; pump failed soon after detained. -> significant pain levels.

Held: Lack of access to pain relief = inhuman and degrading treatment.

Comments:

the ill treatment must reach a minimum level of severity to fall within CIDT/P – ‘beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment’.

This level is relative to the circumstances, duration of treatment, its effects etc

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Other European cases find -

May include overcrowding, inadequate lighting, inadequate ventilation, insufficient sanitary conditions.

State holding people in detention must provide appropriate health care in detention.

Lack of resources and logistical issues are not excuses

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Monitoring and OPCAT (Optional Protocol to the Convention Against Torture)

Internal monitoring

External monitoring

OPCAT – ratified in 48 countries

Requires:

– NPMs – National Preventative Mechanisms– Access for SPT

NZ (2007) – 5 existing bodies

UK (2009) – 18 existing bodies11