Dr Bronwyn Naylor

1. Human Rights, OPCAT and ‘closed environments’Dr Bronwyn NaylorPresentation for DHS and DoH9th September 2011 Dr Bronwyn Naylor

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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