Law
Human Rights, OPCAT and
‘closed environments’
Dr Bronwyn Naylor
Presentation for DHS and DoH
9th September 2011
Dr Bronwyn Naylor
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
2
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 title
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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)
Presentation title
4
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 title
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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
Presentation title
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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’.
Presentation title
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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) )
Presentation title
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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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Presentation title
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 title
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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 bodies
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