Torture UN/OPCAT: 20 ratifications!!
Justice Action | 27.05.2006 01:10 | Health | Repression | Social Struggles | World
The National Children's and Youth Law Centre, together with Justice Action, are leading a campaign for acknowledgement of the mistreatment of Corey Brough, in the NSW prison system, and further, for systemic reform.
Parklea Prison NSW
AUSTRALIA: NSW: Just to let you know the excellent news that Honduras and Bolivia deposited their ratification of the Optional Protocol to the UN Convention against Torture (OPCAT) with the UN in New York yesterday (23 May). This means we have 20 State Parties and that the OPCAT will formally enter into force on the 23 June 2006, almost exactly 19 years after the Convention against Torture entered into force (26 June 1987).
Mark Thomson
APT
From Justice Action...
Congratulations on the hard work Philippe and Mark!
We look forward to publicity about your achievement and the setting up of the inspections. We will assist you in Australia.
On inspections, we are negotiating with government here re a UN Human Rights Committee decision for a 16 year old aboriginal prisoner that his rights were violated.
We look for ongoing community inspections, supportive of the prisoner, rather than depending on professional support that is already here, but was quite useless in this case.
Here is last week’s statement about the situation. We would like discussion on the inspection issue at some stage.
All the best!
Brett Collins
Justice Action
Australia.
The National Children's and Youth Law Centre, together with Justice Action, are leading a campaign for acknowledgement of the mistreatment of Corey Brough, in the NSW prison system, and further, for systemic reform.
Please see attached a press release and coverage by AAP set out below.
Gilbert + Tobin, a Sydney law firm, acts for Corey and on his instructions, made the complaint to the UN Human Rights Committee. Gilbert + Tobin is supporting the campaign and remain Corey's representatives. They are not making public comment.
Here is the Committee's decision:
http://www.unhchr.ch/tbs/doc.nsf/0/8aeb1fcbc458419ac125716200520f4b?OpenDocument
We are looking to expand the advocacy partnerships to include human rights activists, Indigenous activists and mental health activists and to provide further support for the already existing youth and prison reform activists working on this matter.
Some of the issues the campaign will focus on include:
Acknowledgement from Australian and NSW Govt that they have violated Mr Brough's human rights;
Effective and systemic remedies for Mr Brough (and any others that should be identified now and in the future) that include compensation, consideration of early release options, and a post-release suport packages for those whose rights have been violated and their families;
Establishment of a comprehensive and independent review of the system for youth detention;
Creation of an effective justice system within the prison systems that includes independent monitoring, effective access to independent complaints review mechanisms, community-based assistance for prisoners in crisis. Any such systems must prioritise prisoners kept in isolation or segregation;
Creation of effective investigative and reporting powers for the Human Rights and Equal Opportunity Commission (HREOC), that are appropriately resourced;
Establishment of management guidelines for human rights compliance with appropriate training and enforcement;
Acknowledgement of the failure to learn from the RCIADIC process and a reaffirmation of a commitment to treat Indigenous people in custody with respect;
The need for a broad community-based strategy for providing support to young offenders, particularly Indigenous offenders (not to be found within the prison systems now);
The need to develop effective mechanisms for addressing domestic human rights issues (connecting international best practice with our own) - requiring a whole of government approach - perhaps we could get this onto the agenda of SCAG or COAG;
Empowering Indigenous communities to address violence and abuse.
We remain open to ideas about other directions/objectives etc.
======================
AAP wrote:
By Saffron Howden
CANBERRA, May 16 AAP - Australia has violated the rights of a 16-year-old Aboriginal boy kept in isolation without clothes and blankets in a NSW adult prison, the United Nations has found.
Corey Brough, who has a mild intellectual disability, was 16 when he took part in a riot at the Kariong Juvenile Detention Centre in March, 1999.
After the riot, he was transferred to an adult prison, Parklea Correctional Centre, and kept in isolation, given anti-psychotic drugs, and had all his clothing removed.
He was allegedly held in a cell by himself under continuous artificial lighting for up to three days at a time. Within eight days of arriving at the adult prison, Brough had "self-harmed".
Two days later, he allegedly broke a plate and shredded his mattress with a broken fragment and was moved to another cell for 48 hours.
After he tried to obscure the security camera in his cell, all his clothes, except his underwear, were removed by force, along with his pillow and blanket.
In its report, the UN Human Rights Committee says Brough was then allegedly confined to his cell for 72 hours, with the lights on day and night.
Two weeks later, he tried to hang himself with a noose made from his underwear, and that, too, was removed.
He was given anti-psychotic medication, Largactil, but it was unclear whether his condition had been assessed before it was administered.
A GP later prescribed 50mg of Largactil a day until he could be examined by a psychiatrist.
The committee found Australia breached the International Covenant on Civil and Political Rights.
"The author's extended confinement to an isolated cell without any possibility of communication - combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket - was not commensurate with his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an Aboriginal," the committee said.
"As a consequence, the hardship of the imprisonment was manifestly incompatible with his condition, as demonstrated by his inclination to inflict self-harm and his suicide attempt.
"The committee therefore concludes that the author's treatment violated article 10, paragraphs 1 and 3, of the Covenant."
In its submission to the committee, the Australia government said Brough's isolation was a security precaution that did not constitute solitary confinement.
He was given access to exercise, food and water, and the removal of his clothes and blankets was designed to protect him, it said.
His cell was sufficiently heated, there was no record of continuous lighting of more than 24 hours, and the Largactil was used to control his self-destructive behaviour.
The government says there is no record of Brough being confined for 72 hours at a time.
Brough could have filed complaints within the NSW legal system with the ombudsman, the minister for corrective services, and with the Serious Offenders Review Council, it said.
But the committee said Brough could barely read and write.
"The committee notes the author's uncontested claim that he had not been informed about these, or any other administrative remedies, and that he was barely able to read or write at the time of his segregation at Parklea," it said.
He was entitled to compensation for his ordeal under the covenant and Australia had a responsibility to ensure it did not happen to anyone else, it said.
"The author is entitled to an effective remedy, including adequate compensation."
Brough was convicted in March, 1999 of burglary, assault and causing bodily harm, and sentenced to eight months' imprisonment.
Now 24, he is in prison.
The Australia government, as a signatory to the covenant, is responsible for ensuring that the country's other levels of government uphold the covenant.
A spokeswoman for NSW Justice Minister Tony Kelly said the Department of Corrective Services was reviewing the UN report.
AAP
http://www.justiceaction.org.au
Mark Thomson
APT
From Justice Action...
Congratulations on the hard work Philippe and Mark!
We look forward to publicity about your achievement and the setting up of the inspections. We will assist you in Australia.
On inspections, we are negotiating with government here re a UN Human Rights Committee decision for a 16 year old aboriginal prisoner that his rights were violated.
We look for ongoing community inspections, supportive of the prisoner, rather than depending on professional support that is already here, but was quite useless in this case.
Here is last week’s statement about the situation. We would like discussion on the inspection issue at some stage.
All the best!
Brett Collins
Justice Action
Australia.
The National Children's and Youth Law Centre, together with Justice Action, are leading a campaign for acknowledgement of the mistreatment of Corey Brough, in the NSW prison system, and further, for systemic reform.
Please see attached a press release and coverage by AAP set out below.
Gilbert + Tobin, a Sydney law firm, acts for Corey and on his instructions, made the complaint to the UN Human Rights Committee. Gilbert + Tobin is supporting the campaign and remain Corey's representatives. They are not making public comment.
Here is the Committee's decision:
http://www.unhchr.ch/tbs/doc.nsf/0/8aeb1fcbc458419ac125716200520f4b?OpenDocument We are looking to expand the advocacy partnerships to include human rights activists, Indigenous activists and mental health activists and to provide further support for the already existing youth and prison reform activists working on this matter.
Some of the issues the campaign will focus on include:
Acknowledgement from Australian and NSW Govt that they have violated Mr Brough's human rights;
Effective and systemic remedies for Mr Brough (and any others that should be identified now and in the future) that include compensation, consideration of early release options, and a post-release suport packages for those whose rights have been violated and their families;
Establishment of a comprehensive and independent review of the system for youth detention;
Creation of an effective justice system within the prison systems that includes independent monitoring, effective access to independent complaints review mechanisms, community-based assistance for prisoners in crisis. Any such systems must prioritise prisoners kept in isolation or segregation;
Creation of effective investigative and reporting powers for the Human Rights and Equal Opportunity Commission (HREOC), that are appropriately resourced;
Establishment of management guidelines for human rights compliance with appropriate training and enforcement;
Acknowledgement of the failure to learn from the RCIADIC process and a reaffirmation of a commitment to treat Indigenous people in custody with respect;
The need for a broad community-based strategy for providing support to young offenders, particularly Indigenous offenders (not to be found within the prison systems now);
The need to develop effective mechanisms for addressing domestic human rights issues (connecting international best practice with our own) - requiring a whole of government approach - perhaps we could get this onto the agenda of SCAG or COAG;
Empowering Indigenous communities to address violence and abuse.
We remain open to ideas about other directions/objectives etc.
======================
AAP wrote:
By Saffron Howden
CANBERRA, May 16 AAP - Australia has violated the rights of a 16-year-old Aboriginal boy kept in isolation without clothes and blankets in a NSW adult prison, the United Nations has found.
Corey Brough, who has a mild intellectual disability, was 16 when he took part in a riot at the Kariong Juvenile Detention Centre in March, 1999.
After the riot, he was transferred to an adult prison, Parklea Correctional Centre, and kept in isolation, given anti-psychotic drugs, and had all his clothing removed.
He was allegedly held in a cell by himself under continuous artificial lighting for up to three days at a time. Within eight days of arriving at the adult prison, Brough had "self-harmed".
Two days later, he allegedly broke a plate and shredded his mattress with a broken fragment and was moved to another cell for 48 hours.
After he tried to obscure the security camera in his cell, all his clothes, except his underwear, were removed by force, along with his pillow and blanket.
In its report, the UN Human Rights Committee says Brough was then allegedly confined to his cell for 72 hours, with the lights on day and night.
Two weeks later, he tried to hang himself with a noose made from his underwear, and that, too, was removed.
He was given anti-psychotic medication, Largactil, but it was unclear whether his condition had been assessed before it was administered.
A GP later prescribed 50mg of Largactil a day until he could be examined by a psychiatrist.
The committee found Australia breached the International Covenant on Civil and Political Rights.
"The author's extended confinement to an isolated cell without any possibility of communication - combined with his exposure to artificial light for prolonged periods and the removal of his clothes and blanket - was not commensurate with his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an Aboriginal," the committee said.
"As a consequence, the hardship of the imprisonment was manifestly incompatible with his condition, as demonstrated by his inclination to inflict self-harm and his suicide attempt.
"The committee therefore concludes that the author's treatment violated article 10, paragraphs 1 and 3, of the Covenant."
In its submission to the committee, the Australia government said Brough's isolation was a security precaution that did not constitute solitary confinement.
He was given access to exercise, food and water, and the removal of his clothes and blankets was designed to protect him, it said.
His cell was sufficiently heated, there was no record of continuous lighting of more than 24 hours, and the Largactil was used to control his self-destructive behaviour.
The government says there is no record of Brough being confined for 72 hours at a time.
Brough could have filed complaints within the NSW legal system with the ombudsman, the minister for corrective services, and with the Serious Offenders Review Council, it said.
But the committee said Brough could barely read and write.
"The committee notes the author's uncontested claim that he had not been informed about these, or any other administrative remedies, and that he was barely able to read or write at the time of his segregation at Parklea," it said.
He was entitled to compensation for his ordeal under the covenant and Australia had a responsibility to ensure it did not happen to anyone else, it said.
"The author is entitled to an effective remedy, including adequate compensation."
Brough was convicted in March, 1999 of burglary, assault and causing bodily harm, and sentenced to eight months' imprisonment.
Now 24, he is in prison.
The Australia government, as a signatory to the covenant, is responsible for ensuring that the country's other levels of government uphold the covenant.
A spokeswoman for NSW Justice Minister Tony Kelly said the Department of Corrective Services was reviewing the UN report.
AAP
http://www.justiceaction.org.au
Justice Action
Comments
Hide the following comment
Clear case of watchdog failure
28.05.2006 03:43
5.2 On the issue of exhaustion of domestic remedies, the author reiterates that administrative (23) and judicial remedies available to him would be ineffective. While complaints within the prison are received by the prison governor, the very person who authorized his conditions of detention, complaints to the Ombudsman could only result in the adoption of a report or recommendation to the Government, without providing any enforceable right or recourse. The travaux préparatoires of article 2, paragraph 3 (b), of the Covenant indicate the drafters' intention that States parties should progressively develop judicial remedies. More than 20 years after ratification of the Covenant in 1980, Australia should have complied with this obligation.
The National Children's and Youth Law Centre, together with Justice Action, are leading a campaign for acknowledgement of the mistreatment of Corey Brough, in the NSW prison system, and further, for systemic reform.
Please see attached a press release and coverage by AAP set out below. Gilbert + Tobin, a Sydney law firm, acts for Corey and on his instructions, made the complaint to the UN Human Rights Committee. Gilbert + Tobin is supporting the campaign and remain Corey's representatives. They are not making public comment.
Here is the Committee's decision:
Here is your back up?
The official Visitor who reports to the Commissioner of Corrective Services and the minister about your treatment. Accept all that happens is the Official Visitor passes on the complaint to the political wing so they can draw up a backhander to publicise in the media about a prisoners new plot? So all that happens is more information from the victim to the perpetrators of the torture!
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6.2 The State party submits that all prisoners in New South Wales adult correctional facilities have access to Official Visitors, who are appointed by the Minister for Corrective Services to visit correctional centres at least once per month and to receive complaints from prisoners. The Governor of the correctional centre must notify all inmates of the date and time of such visits and inform them about the possibility to complain to Official Visitors. Under the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995, the Official Visitor is required to clarify the details of a case and to submit an Official Visitor's record form to the Commissioner of Corrective Services. He is also required to bring the complaint to the attention of the Governor of the correctional facility. The Regulation does not specify a deadline for bringing complaints to Official Visitors.
6.3 Moreover, the author could have requested permission to speak with the Governor of the correctional centre or with the Minister or the Commissioner for Corrective Services. Such requests must be conveyed to the Governor without unreasonable delay; the Governor is required to give the inmate an opportunity to speak on the matter or, respectively, to convey the request to the person with whom the inmate wished to speak during that official's next visit to the correctional facility.
6.4 The State party adds that an inmate may also directly complain, in writing, about his treatment in the correctional centre to the Minister or the Commissioner for Corrective Services. The complaint must be placed in a sealed envelope addressed to the Minister or the Commissioner and must not be opened, or its contents read or inspected. Although the Minister could not intervene personally, all complaints received by him were referred to the appropriate body, e.g. the Commissioner, who had the power to overrule or reverse any previously made decision.
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To the torturer: Will you please stop torturing me? No!
Please sir I don't want anymore!
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Just to ensure the maladministraton the Office of the Inspector General has been taken out of the complaint mechanism!
==============================
6.5 The author also had the possibility of complaining to the Inspector-General of Corrective Services, whose mandate terminated on 30 September 2003. The Inspector-General was appointed by the Governor of New South Wales and was independent from the Department of Corrective Services. He was given full access to offenders held in custody, as well as to the premises and records of the Department, with a view to investigating and resolving complaints about the Department's conduct. This function could be exercised on his own initiative, at the request of the Minister for Corrective Services or in response to a complaint. Although no deadline for filing a complaint was specified, the Inspector-General had discretion to decide not to investigate complaints relating to incidents which had occurred too long ago or for which satisfactory alternative means of redress existed. He could recommend disciplinary action or criminal proceedings against officers of the Department.
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6.6 As regards the author's period of segregation, the State party submits that, under the Crimes (Administration of Sentences) Act 1999, any prisoner whose segregation exceeds fourteen days has the right to appeal to the Serious Offenders Review Council. Prisoners must be informed of their right to appeal and must sign a form stating that they have been so informed. Upon review, the Council may confirm, amend or revoke a segregation order. Pending the final outcome of a case, it may also order the suspension of the segregation or the prisoner's removal to another correctional centre.
6.7 Lastly, regarding judicial remedies, the State party reiterates that Australian courts consider themselves competent to deal with prisoners' challenges to the lawfulness of their confinement, including actions brought against acts in breach of a duty of care causing harm or injury to prisoners. The relevant cause of action was based on the tort of negligence in common law, subject to the Civil Liability Act 2002 (NSW), which provided for exclusion of personal liability for certain persons under certain circumstances. In accordance with the Crown Proceedings Act 1988 (NSW), the respondent party in proceedings commenced in common law tort against a government agency, which was not a separate legal entity, was the State of New South Wales. However, the author had failed to bring a court action in common tort negligence.
==========================
Now can we have a complaint mechanism that actually works?
I mean one with a remedy?
===========================
7.1 On 14 September 2005, the author commented on the State party's additional observations, denying that any of the above administrative or judicial remedies would in practice have been available to him or that they would have provided him with an effective remedy at the relevant time. He had never been advised of possible complaint mechanisms upon being admitted to Parklea Correctional Facility. In addition, the treatment complained of was to a large extent compatible with the relevant Australian laws and regulations.
7.2 The author submits that he was never told whether or when an Official Visitor would visit Parklea during his time of incarceration. This had deprived him of an opportunity to complain to the Official Visitor who was, in any event, required not to "interfere with the management of discipline of the correctional centre, or give any instructions to correctional centre staff or inmates." (24)
7.3 The author contends that the Governor of Parklea Correctional Centre dismissed his repeated complaints about the conditions of his detention by replying: "You are not in a boy's home anymore. This is the way we run the place." Or: "Nothing will be done about it; this is how we run the place and how you will be treated." Given that the decision whether or not to act on a complaint was within the Governor's discretion, (25) such a complaint was not an effective remedy. This was reflected by the fact that the author's file revealed that the Governor had approved of his segregation and confinement on six occasions during the relevant period.
7.4 The author claims that he had not been informed about the possibility of making a complaint to the Minister or Commissioner for Corrective Services, whether through the Governor or whether directly in writing. The fact that the Governor was not required to refer a complaint to the Minister or Commissioner but could dispose of the matter personally, (26) the purely recommendatory powers of the Commissioner, as well as the author's difficulties to read and write and the absence of pens, pencils or paper in his dry cell, showed that such complaints were not an effective remedy.
7.5 Although a lawyer from the Sydney Regional Aboriginal Corporation Legal Service filed a complaint with the Minister for Juvenile Justice on the author's behalf, following his release from segregation, no remedial action was taken on that complaint.
7.6 The author further submits that he was never informed about the possibility of complaining to the Inspector-General. Since the Inspector-General had discretion not to pursue complaints for which alternative means of redress existed, he could have dismissed his application on the ground that the author had already complained about his treatment to the Governor.
7.7 Similarly, he had never been advised that he could appeal his segregation to the Serious Offenders Review Council, nor had he signed a form stating that he had been so informed. Such an appeal would not have been an effective remedy, given that he was not a serious offender at the time of his segregation and that the Council had no competence to deal with issues other than segregation, such as, for example, his physical and medical treatment.
7.8 The author argues that, although he was aware that the Governor had authorized his treatment, as evidenced by his Department of Corrective Services file, he took all reasonable steps within the capacity of a 16 year old Aboriginal child with an intellectual disability to seek a change of his treatment, i.e. by complaining to his Aboriginal Deaths in Custody officer and to the Governor of the correctional centre.
7.9 By reference to the expert advice dated 7 May 2002 , the author reiterates that any court action for breach of duty of care would have been futile.
Who you gonna call? Ghostbusters! Or if you're lucky the UNCCPR
Please see attached a press release and coverage by AAP set out below. Gilbert + Tobin, a Sydney law firm, acts for Corey and on his instructions, made the complaint to the UN Human Rights Committee. Gilbert + Tobin is supporting the campaign and remain Corey's representatives. They are not making public comment.
Here is the Committee's decision:
=========================================
One more thing if you're a State prisoner
3.10 As regards the complaint procedure under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the author states that this procedure applies only to acts or practices of the Commonwealth and not to acts of the New South Wales prison staff. The author also submits a report dated 7 May 2002 by a specialist on personal injury law, which states that he could not successfully make a claim in negligence, based on his treatment at Parklea.
Dirk