Law Human Rights, OPCAT and ‘closed environments’ Dr Bronwyn Naylor Presentation for DHS and DoH 9 th September 2011 Dr Bronwyn Naylor

2 Outline 1My research 2Human Rights and closed environments 3Torture, cruel, inhuman or degrading treatment or punishment 4Application to closed environments 5The 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. Presentation title3

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) Presentation title4

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 Presentation title5

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 Presentation title6

 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 [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’. Presentation title7

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) ) Presentation title8

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 Presentation title 9

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 Presentation title10

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 bodies 11