CAT/C/68/D/852/2017
complainant and others who were patients at Lake Alice during that time will be able to
make submissions and participate in the inquiry process. The Commission may directly
comment on the events at Lake Alice during that period and the lessons which can be
learned from those events. The Commission will have extensive powers, including the
power to summon witnesses and require any person to produce information. It is to deliver
its final report to the Governor-General of New Zealand by 3 January 2023. The final report
must be presented to the House of Representatives as soon as practicable after that date. In
the light of these comprehensive reviews, the State party has complied with and will
continue to comply with its obligation under article 11.
Additional submission from the complainant
7.
On 22 May 2019, the complainant records that the new police investigation into
allegations of sexual assault, the revision of the guidelines under the Mental Health Act
1992 and the Royal Commission of Inquiry have transpired since his initial complaint to the
Committee. In the matter of the Royal Commission of Inquiry, there has been a very recent
announcement that the Commission will begin hearing evidence in early 2020 from people
who have been in institutions. It is being proposed by the Minister of State Services that the
Government responds to the Commission as concerns become evident, rather than wait
until 2023 when the Commission is due to complete its work. It may therefore also be
reasonable to see what transpires from the Commission’s investigation into Lake Alice.
With its ability to summon witnesses, it might well uncover information as to why earlier
medical, government and police investigations did not amount to anything.
Issues and proceedings before the Committee
Consideration of admissibility
8.1
Before considering any complaint contained in a communication, the Committee
must decide whether the complaint is admissible under article 22 of the Convention. The
Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention,
that the same matter has not been and is not being examined under another procedure of
international investigation or settlement.
8.2
The Committee notes that the State party submits four sets of arguments relating to
the admissibility of the communication, which it will examine separately.
8.3
Firstly, the State party argues that the complainant’s allegations under articles 2, 10
and 11 of the Convention should be declared inadmissible ratione temporis. The
complainant has not commented on this aspect. The Committee notes that the alleged
events took place between 1974 and 1977, when the complainant had been admitted to the
Child and Adolescent Unit at the Lake Alice Psychiatric Hospital, and that the State party’s
declaration pursuant to article 22 (1) of the Convention was effective from 10 December
1989. The Committee observes that even though the alleged ill-treatment preceded the
adoption and entry into force of the Convention for the State party, the prohibition of
torture and other ill-treatment was nonetheless universally accepted as absolute at that
time.31 The Committee recalls that a State party’s obligations under the Convention apply
from the date of its entry into force for that State party. However, the Committee can
examine alleged violations of procedural obligations under the Convention which occurred
before a State party’s ratification or accession to the Convention, or recognition of the
Committee’s competence through its declaration under article 22 and of other obligations
that have similar legal effect under the Convention. In that connection, the Committee notes
that both the filing of the complaint to the police and their decision not to investigate Dr.
Leeks occurred after the entry into force of article 22 of the Convention for the State party.
The Committee therefore considers that, while the acts of ill-treatment occurred between
31
12
See, for example, article 5 of the Universal Declaration of Human Rights; article 32 of the Fourth
Geneva Convention, which however applies to armed conflict; and article 7 of the International
Covenant on Civil and Political Rights, which was adopted and opened for signature, ratification and
accession in 1966 and entered into force in 1976.