CAT/C/62/D/672/2015
argues that the Act is incompatible with the Convention because, under the Act, prompt
rehabilitation and compensation and equal access to justice are impossible, as compensation
is subject to debt deductions and possible claims against the prisoner made by third parties. 6
He notes that because it is subject to deductions, any compensation will be frozen for six
months and placed in trust pending the resolution of any potential third-party claim against
the prisoner. The complainant contends that prisoners are the only group whose right to
compensation is conditional on deduction of any debts or claims made by third parties and
that, by subjecting compensation to the conditions under the Act, the State party fails to
provide substantive, comprehensive and individualized reparations and redress to prisoners
who are victims of torture or ill-treatment, in violation of article 14 of the Convention.
3.4
The complainant notes that the State party has entered a reservation to article 14 of
the Convention. He refers to general comment No. 3, in which it is stated that the
Committee considers reservations that seek to limit the application of article 14 to be
incompatible with the object and purpose of the Convention. He submits that his claim
under article 14 is therefore admissible.
State party’s observations on admissibility and the merits
4.1
On 13 October 2015, the State party submitted its observations on the admissibility
and merits of the complaint. The State party submits that the complainant’s claim under
article 14 is inadmissible because the State party has entered a reservation to article 14. The
State party further submits that the complainant’s rights under articles 14 and 16 of the
Convention have not been violated.
4.2
The State party argues that its reservation to article 14 of the Convention is
permissible because it is not incompatible with the object and purpose of the Convention. It
argues that the reservation does not deny victims of torture the right to compensation. It
simply gives the Attorney-General rather than the courts or other actors the power to make
decisions about compensation awards. The State party submits that the Attorney-General
exercises his or her functions independently of the Government and that any decision made
would therefore be apolitical and would not result in the inappropriate denial of
compensation to a victim of torture.
4.3
The State party submits that the cell confinement of the complainant does not
constitute a breach of article 16 in the circumstances of the case. It notes that the
complainant alleges that his rights under article 16 were violated on the basis of the
decision of the Court of Appeal, which had found that his rights under section 23 (5) of the
Bill of Rights had been violated. The State party submits that section 23 (5) of the Act is
not equivalent to article 16 of the Convention. It notes that the Bill of Rights contains two
rights that together establish a hierarchy of rights of detainees in relation to their conditions
of detention. Section 9 prohibits torture and cruel, degrading and disproportionately severe
treatment or punishment, while section 23 (5) imposes a positive obligation to treat
detainees with humanity and respect for their inherent dignity. The State party notes that the
Court of Appeal found that there had been no breach of section 9 of the Bill of Rights Act,
which is the right in the Act that is most similar to article 16 of the Convention. Rather, it
found that the State had breached its positive obligation under section 23 (5), as the prison
authorities should have prevented the complainant, because of his vulnerability, from
voluntarily choosing to be confined to his cell for 21 days. It also notes that the complainant
did not seek to appeal the Court’s finding that his placement in cell confinement had not
constituted a breach of section 9 of the Bill of Rights Act.
4.4
The State party submits that, in the complainant’s case, neither the length nor the
conditions of confinement amount to a breach of article 16. It refers to the jurisprudence of
the Human Rights Committee and notes that that Committee has found violations of articles
6
4
not more properly within the jurisdiction of another authority, official agency or body, or statutory
officer, investigation by an Ombudsman or by an employee of the Office of the Ombudsman of a
complaint under the Ombudsmen Act 1975.
The complainant notes that, under the Act, deductions can be made for civil debts such as an
obligation to repay legal aid, orders for reparation imposed on the prisoner at the time of the sentence
and any outstanding amounts owed to the prisoner’s victims.