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The Committee
against Torture, established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 5 May 2004,
Having concluded its consideration of complaint No. 202/2002, submitted to
the Committee against Torture by Ms Helle Jensen, under article 22 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment,
Having taken into account all information made available to it by the
complainant, his counsel and the State party,
Adopts the following:
Decision on Admissibility
1. The complainant is Ms. Helle Jensen, a Danish citizen, currently residing
in North Western Zealand. She claims to be a victim of a violation of
articles 1, paragraph 1, 12 and 16 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. She is
represented by counsel.
The Facts as Presented:
2.1 On 29 April 1998, the complainant was arrested in her home in North
Western Zealand and charged with smuggling cigarettes, under Section 289 of
the Danish Criminal Code, and Section 73(3), subsection (2), of the Danish
Customs Act. She was later also indicted with the "attempted participation"
in agreeing to "receive and distribute" hash, under Sections 191(2),
subsection (1), and Section21 of the Criminal Code.
2.2 On 30 April 1998, the complainant was brought before a judge of the
District Court of Kalundborg. Pursuant to a request by the Chief Constable,
the Court ordered the complainants detention and solitary confinement,
pursuant to Section 762(1)(iii) and 770 a) of the Administration of Justice
Act (hereinafter "the Act"). The Court considered that she should be held in
solitary confinement, as there were reasonable grounds to suspect that she
was guilty as charged and would attempt to obstruct the investigation by
contacting others involved. The pre-trial detention period was set to expire
on 26 May 1998, and the solitary confinement period on 12 May 1998. On 4 May
1998, the High Court of Eastern Denmark upheld the order on the grounds
stated by the District Court.
2.3 On 11 May 1998, the District Court considered whether to continue the
complainant's solitary confinement. Counsel submitted that the measure was
disproportionately hard, as the complainant had three children - twins of 3
years and a child of 7. The District Court ordered her continued detention
in solitary confinement until 26 May 1998, as the grounds for such
confinement continued to apply. On 13 May 1998, the High Court upheld the
order on the grounds stated by the District Court.
2.4 On 26 May 1998, the District Court considered whether to prolong
pre-trial detention and solitary confinement. Counsel objected to continued
detention, as "the detainee's personal health has deteriorated substantially
during her pre-trial detention from 30 April 1998 until now, which is
confirmed by the detainee's condition and the two medical records. The
District Court ordered that she remain in solitary confinement until 23 June
1998, "on the grounds of the complexity of the case, and as some of the
persons involved are still at large...". On 28 May 1998, the High Court
upheld the District Court's order.
2.5 On 28 May 1998, at the request of the complainant's counsel, the prison
doctor reported on her state of health. The doctor had treated the
complainant on 15 and 28 May 1998, and the emergency service physician, a
crisis therapist, on 22 May 1998. The report concluded that the complainant
appeared to be close to a psychotic breakdown......The inmate's condition
can fully be explained as the result of incarceration and solitary
confinement. I most urgently recommend that solitary confinement be
discontinued promptly and that it is considered whether alternative
placement can be found that will enable the inmate to have more association
with her children. I find the inmate's health threatened and will monitor
her closely." This report was produced in the High Court, when it considered
the complainant's appeal of the District Court's order of 26 May 1998. On 29
May 1998, the complainant was admitted to the County Hospital of Nykøbing,
Zealand. She discharged herself the next day, as she wanted to be near her
children.
2.6 On 18 June 1998, the complainant's solitary confinement was terminated.
On 19 June 1998, the prison physician forwarded another report to the Chief
Constable of KaIundborg. It stated, "it is of the utmost importance that Ms
Jensen's solitary confinement is terminated; this should on health grounds
have been done already, and I understand that the solitary confinement was
terminated yesterday evening". Finally, he refers to a report of the same
date from a psychotherapist, in which he "must clearly express Ms Jensen's
need not only for getting out of solitary confinement, but also for being
released from prison during the further investigation, until the final
judgment. Otherwise, all parties involved must anticipate an unnecessary
spontaneous psychotic condition that will affect Ms Jensen for the rest of
her life." These reports were produced during a hearing before the District
Court on 22 June 1998. The Court established that the complainant was no
longer held in solitary confinement but ordered the extension of the
pre-trial detention period until 20 July 1998. It also ordered, with the
complainant's consent, that she should be examined as an out-patient by a
forensic psychiatrist during the rest of her stay in prison.
2.7 On 9 July 1998, the consultant of the Department of Forensic Psychiatry
of the County Hospital of Nykøbing, Zealand forwarded his opinion on the
complainant's mental health, concluding that "the only proper treatment
would be to unite [the complainant] with her children as soon as possible,
either with her parents or in one of the institutions of the Prison and
Probation Service, and to give her adequate psychotherapeutic help in this
environment". On 14 July 1998, this report was produced before the District
Court, which decided to extend the complainant's pre-trial detention but
also decided, with her consent, that she be placed in alternative detention
at the Lyng Halfway House of the Prison and Probation Service, together with
her three children. She was transferred there on 17 July 1998 and remained
in this facility until her trial on 29 October 1998.
2.8 On 30 April 2001, the complainant's representative, Professor Bent
Sørensen, an expert in the field of torture identification and research,
wrote to the Director of Public Prosecutions (thereinafter "the DPP")
requesting an investigation into the possibility that the complainant had
been subjected to psychological torture by virtue of her detention in
solitary confinement. On 14 August 2001, the DPP responded that he found no
basis for initiating such an investigation as, in his opinion, "there is no
basis for believing that the pre-trial detention in solitary confinement was
effected for the purpose of obtaining information or a confession from the
person charged or a third party, making it an act of torture as defined in
the Convention against Torture." Despite two further subsequent requests to
initiate an investigation, the DDP refused to reconsider his decision.
The Complaint:
3.1 Ms. Jensen claims that the State party violated articles 1, paragraph 1,
and 16 of the Convention, by subjecting her to psychological torture and
acts of cruel, inhuman or degrading treatment or punishment, by detaining
her in solitary confinement from 29 April to 18 June 1998, despite medical
evidence demonstrating its adverse effect on her mental health.
3.2 The complainant contends that the State party violated article 12 of the
Convention, as the DPP failed to carry out a prompt and impartial
investigation into the allegations of psychological torture, as requested by
her representative.
3.3 The complainant argues that she exhausted domestic remedies, as in the
last letter written to the DDP her representative had indicated that if the
DPP did not respond to his letter, he would assume that domestic remedies
were deemed to have been exhausted. The complainant's representative did not
receive a response.
The State Party's Submission on Admissibility and Merits:
4.1 By submission of 26 April 2002, the State party challenges the
admissibility and merits of the complaint. It invokes Section 762 of the
Criminal Procedure Act, which at the time of the complainant's imprisonment,
provided for pre-trial detention. Under the applicable terms of this Act,
the court decides, at the request of the police, whether the person charged
should be held in pre-trial detention. The order must fix a period for the
pre-trial detention, which must be as short as possible and may not exceed
four weeks. The period may be extended, but not by more than four weeks at a
time. An order for detention may be appealed to a superior court. Finally,
it states that pre-trial detention must be terminated, if necessary by court
order, when the charges are dropped or the conditions for detention no
longer exist. If the court finds that the investigation is not pursued with
adequate expediency or continued pre-trial detention is not reasonable, the
court must terminate it.
4.2 The State party furnishes Section 770 of the Administration of Justice
Act, which provides for detention in solitary confinement. Under this
Section, it is necessary to have reasonable grounds for suspecting that the
person charged has committed an offence, which is subject to public
prosecution and, under the law, may result in imprisonment for at least one
year and six months. Proportionality is a precondition for any decision on
initiation and continuation of pre-trial detention in solitary confinement.
The State party notes that the provisions on pre-trial detention in solitary
confinement were substantially amended by Act No. 428 of 31 May 2000. The
new provisions entered into force on 1 July 2000. The purpose of the
amendment was to limit the resort to, and duration of, pre-trial detention
in solitary confinement; it provides for more specific criteria for
initiating and continuing solitary confinement, and shorter periods of such
confinement. [FN1]
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[FN1] The State party refers the Committee to the account given in Denmark's
fourth periodic report, paras. 117-123 (CAT/C/55/Add.2).
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4.3 The State party challenges the admissibility of the complaint for
failure to exhaust domestic remedies. Firstly, the complainant could have
applied to the Board of Appeal for leave to appeal the orders of the High
Court to the Supreme Court. Under Section 973 of the Act, the Board could
have granted leave to appeal, "if the appeal relates to questions of a
fundamental nature or specific reasons otherwise make it appropriate". In
support of her application, she could have argued that her pre-trial
detention in solitary confinement was contrary to the Convention. The State
party notes that the European Court of Human Rights has held that an
application to the Board of Appeal for leave to appeal is a remedy that must
be exhausted for the purposes of admissibility of a complaint under the
European Convention. [FN2]
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[FN2] Application No. 45485/99, Ali Lanewala v. Denmark.
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4.4 Secondly, although the complainant was convicted, she could have made a
claim for compensation under Section 1018 a (2) or h of the Act. Pursuant to
Section 1018 a (2), a person who was arrested or held in pre-trial detention
as part of a criminal prosecution is entitled to compensation for injury
caused while detained if "the deprivation of liberty applied during the case
is not reasonably proportionate to the outcome of the prosecution, or if it
is found reasonable for other specific reasons". The fact that pre-trial
detention in solitary confinement is alleged to have harmed the complainant
would have been particularly relevant to such a claim for compensation.
Pursuant to Section 1018 h, anyone may claim compensation in respect of
criminal proceedings on the basis of the general rules of tort law.
4.5 A claim for compensation under Section 1018 a (2) is considered by the
Regional Public Prosecutor, with the possibility of appeal to the DPP, and a
claim under Section 1018 h is considered by the DPP with the possibility of
appeal to the Ministry of Justice. In both cases, the complainant would have
the possibility of filing a claim before the court, under Section 1018 f
(1), in the event of a refusal on appeal. To demonstrate that this remedy is
available and effective in the circumstances of the present complaint, the
State party invokes the following example of a similar case, in a Supreme
Court judgment of 5 September 2000, a person who had been acquitted in a
criminal case filed a claim for compensation for loss of employment and
permanent disablement as a consequence of pre-trial detention in solitary
confinement, which had caused mental illness. [FN3] In support of the claim,
the claimant submitted, inter alia, that he had been subjected to torture
contrary to article 3 of the European Convention on Human Rights. The
Supreme Court found that the pre-trial detention in solitary confinement was
the main cause of the claimant's mental illness and awarded compensation.
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[FN3] Danish Law Reports 2000, p. 2385, Supreme Court, U 2000, p. 2385 H.
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4.6 On the merits, the State party submits that for an act to be
characterized as torture,it must fulfill all the conditions of article 1,
paragraph 1, of the Convention. It submits that it cannot be inferred from
the wording of article 1 that pre-trial detention in solitary confinement
would come, in principle, within the definition of "torture" in article 1.
Although the Committee's Concluding Observations on Denmark's third periodic
report notes that the Committee was concerned about the institution of
solitary confinement, particularly as a preventive measure during pre-trial
detention", it did not state that pre-trial detention in solitary
confinement, in principle, comes within the definition of torture. [FN4]
Nor, indeed, can this be inferred from Committee's jurisprudence.
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[FN4] A/52/44
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4.7 The State party submits that solitary confinement, is not, and in this
particular case was not, effected to obtain information or a confession from
the complainant, to punish her for an act she committed or was suspected of
having committed, to intimidate or coerce her or a third person or for any
reason based on discrimination of any kind. Under the current rules,
pre-trial detention in solitary confinement presupposes that there are
"specific reasons for assuming, in the circumstances of the case, that the
person charged will hamper the prosecution of the case, particularly by
removing clues or warning or influencing others", and that "there are
specific reasons to assume that the pre-trial detention is not in itself
sufficient to prevent the detainee from influencing other persons charged
through other inmates or from influencing others by threats or in another
similar way". [FN5] If solitary confinement during pre-trial detention is
decided for any other purpose, it would be contrary to the rules of the Act
and thus unlawful.
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[FN5] Section 762(l)(iii) and 770 a(l)(ii) of the Act, respectively.
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4.8 The State party denies that solitary confinement during pre-trial
detention is in principle contrary to article 16 of the Convention. Article
16 supplements article 1, and both articles correspond to the first sentence
of article 7 of the International Covenant on Civil and Political rights
(hereinafter the "ICCPR"). Article 7 provides that "No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment." According to the State party, it can be inferred from the Human
Rights Committee's General Comment 20 that solitary confinement during
pre-trial detention is not in principle contrary to article 7 of the ICCPR,
as the General Comment states that prolonged solitary confinement of the
detained or imprisoned person may amount to acts prohibited by article 7"
(emphasis added), that is, in specific cases depending on the circumstances
of the individual case.
4.9 The State party acknowledges that there may be cases in which pre-trial
detention in solitary confinement may constitute "cruel, inhuman and
degrading treatment or punishment". It invokes the principle adopted by the
European Court of Human Rights in considering the possibility of violations
of article 3 of the European Convention on Human Rights ("No one shall be
subjected to torture or to inhuman or degrading treatment or punishment.")
In the case of Rasch v. Denmark, it was stated that "when a measure of
solitary confinement is considered, a balance must be struck between the
requirements of the investigation and the effect which the isolation will
have on the detained person. Where solitary confinement is applied, the
authorities must therefore ensure that its duration does not become
excessive." [FN6] Under the European Convention, pre-trial detention in
solitary confinement may, in certain circumstances, constitute "inhuman
treatment". [FN7]
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[FN6] Application No. 10263/83, decision of 11 March 1985.
[FN7] According to the State party, this principle has been followed by the
European Court in the following cases: Application No. 38321/97, Erdem v.
Germany, decision of 9 December 1999,
and Application No. 25498/94, Messina v. Italy, decision of 8 June 1999.
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4.10 In challenging the alleged violations of articles 1, paragraph 1 and
16, the State party describes the complainant's conditions of detention in
solitary confinement. The cells of the prison measure approximately 8 m2 and
have television and radio. It is possible to borrow newspapers, and books
can be ordered from the Kalundborg Public Library. There are two daily
outdoor exercise periods, one in the morning, one in the afternoon, each for
half an hour. It is possible to use a fitness room.
4.11 The State party submits that the complainant was not completely cut off
from contact with other people during her 50-day period of detention in
solitary confinement. She had contact with the prison staff on a daily
basis; her parents and children nine times; a social worker twice; the
prison physician/doctor six times; the emergency service physician twice;
and a psychotherapist three times. She could contact her counsel, a minister
of religion or someone from the Prison and Probation Service. From 29 to 30
May 1998, she was hospitalized at the County Hospital of Nykøbing, Zealand;
she was brought before the District Court three times in connection with the
requests for continued solitary confinement.
4.12 According to the State party, the charge of smuggling against the
complainant was of a particularly aggravated nature. At the hearing on 30
April 1998 charges against the complainant related to the smuggling of about
1.1 million cigarettes. This was subsequently extended, and the High Court
judgment convicted her of participation in the smuggling of 6.6 million
cigarettes. The investigation was comprehensive and difficult. Several
individuals were involved in the case, including some who were still at
large. For this reason, it was feared that the complainant might warn or
otherwise contact these individuals, thus obstructing the investigation.
Moreover, solitary confinement was terminated as soon as the investigation
was over, i.e. on 18 June 1998, even though the period of her solitary
confinement did not expire until 23 June 1998. During the 50-day period,
both the District and High Courts considered the question of whether the
conditions for solitary confinement were met on six occasions - 30 April, 4,
11, 13, 26 and 28 May 1998. Thus, the State party argues, the courts
continuously struck a balance between the requirements of the investigation
and the needs of the complainant.
4.13 On the issue of the complainant's mental health, the State party
emphasises that only oral information on her psychological state had been
produced before the District Court when it made its order on 26 May 1998.
Prior to this date neither written nor oral information had been produced on
the state of her mental health. The report of 28 May 1998 was produced in
the High Court, when it made its order on the same date, but it did not find
that this information was such as to make the complainant's continued
detention in solitary confinement disproportionate. The subsequent report of
19 June 1998 was produced at the following hearing on 22 June 1998, when the
complainant's solitary confinement had already been terminated.
Nevertheless, the Court decided to initiate an examination by a forensic
psychiatrist, whose report was submitted at the hearing on 14 July 1998. The
Court complied with the recommendation of the report and ordered that the
complainant be placed in alternative detention in the Lyng Halfway House,
where she could stay with her children.
4.14 On the alleged violation of article 12, the State party submits that it
is characteristic of the complaints previously considered by the Committee
under this provision that the authorities involved were executive
authorities that had carried out actions which could be characterized as
torture or ill-treatment, and which had taken place in connection with an
arrest or detention. [FN8] By contrast, the State party is not aware of any
case in which article 12 was invoked in relation to decisions made by
judicial authorities. The State party argues that the decision on pre-trial
detention in solitary confinement was made by an independent and impartial
court on the basis of a procedure which fully protected the complainant's
right to a fair hearing. In its view, there is no basis for interpreting
article 12 in a way that an administrative authority, here the DPP, is
obliged to proceed to an investigation in a case where a detainee is
dissatisfied with the court decisions in his/her case. Such an arrangement
would clearly be contrary to the principle of the independence of the
courts. To the extent that article 12 applies at all in relation to the
present complaint, the State party reiterates its comments above on the
proportionality test used by the courts in deciding on detention in solitary
confinement.
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[FN8] The State party refers to Radivoje Ristic v. Yugoslavia, Complaint No.
113/1998 of 11 May 2001; Khaled M'Barek v. Tunisia, Complaint No. 60/1996 of
10 November 1999; Encarnacion Blanco Abad v. Spain, Complaint No. 59/1996 of
14 May 1998; Henri Unai Parot v. Spain Complaint No. 6/1990 of 2 May 1995;
and Qani Halimi-Nedzibi v. Austria, Complaint No. 8/1991 of 18 November
1993.
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Complainant's Comments:
5.1 By submission of 13 October 2003, the complainant submits that an
application for leave to appeal to the Board of Appeal is a mere theoretical
possibility. The records of the Board show that in 1996 (when it was
established) and 1999 no grants for leave to appeal were made in cases
concerning pre-trial detention and solitary confinement for that eave to
appeal to be granted, it is necessary to prove exceptional circumstances,
such as youth or prior mental problems. Moreover, the few cases concerning
remand in solitary confinement in which leave to appeal to the Supreme Court
was granted, are unlikely to be overturned. Thus, the complainant argues,
exhaustion of domestic remedies is not necessary, as "it is established that
the application of domestic remedies... would be unreasonably prolonged or
would be unlikely to bring effective relief to the presumed victim". [FN9]
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[FN9] L.O. v. Canada, Complaint No. 95/1997 of 19 May 2000. The State party
also refers to T.P.S. v. Canada, Complaint No. 99/1997 of 16 of May 2000.
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5.2 The complainant argues that in her merits response below, it is
demonstrated that the violation of her rights is not solely attributable to
the Danish judiciary but also to the prison authorities and the Kalundborg
Police, for failure to secure had her removal from solitary confinement,
when, as early as 15 May 1998, medical experts did document the devastating
psychological harm she had suffered through solitary confinement.
Furthermore, it is within the remit of the DPP to initiate investigations of
local police districts, such as the Kalundborg Police.
5.3 On the argument that she should have sought compensation, the
complainant submits that her purpose in submitting a complaint to the
Committee is not to seek compensation, but to establish that the State party
violated her rights under the Convention. Denmark is a "dualist" state,
which chose not to incorporate the Convention into Danish law. Consequently,
the Danish courts have no power to hear complaints brought by individuals
based on the provisions of the Convention. A complaint before the Danish
courts seeking to establish a violation of her Convention rights would have
been futile, thus rendering a compensation claim under Section 1018 a (2) an
ineffective remedy for an alleged violation of the Convention. The
complainant also notes that the Danish courts have consistently refused to
acknowledge that illness during police custody can entail violations of the
Convention and article 3 of the European Human Rights Convention.
5.4 On the argument that her allegations do not fulfill the conditions of
article 1, paragraph 1, the complainant submits that the medical evidence,
in the form of statements from several doctors and therapists in the spring
of 1998, demonstrates that she did experience "severe pain and suffering",
within the meaning of this provision. The serious symptoms experienced by
her are said to be commonly found in those who have been held in solitary
confinement. She refers to studies by the Danish NGO "Isolations-gruppen",
who have lobbied for the abolishment of solitary confinement, to show that
persons held in such confinement are more likely to commit suicide.
Therefore, the State party was aware of the "severe pain and suffering"
generally experienced by those held in solitary confinement, and
particularly in the complainant's case. Moreover, it was aware that the
complainant had three young children, a fact which would only increase her
pain and suffering to be held in solitary confinement. Ms. Jensen argues
that her claim that the State party was aware of the shortcomings of the
legislation governing on solitary confinement for pre-trial detainees at the
time of her remand, is supported by the subsequent change in the relevant
provisions of the Act.
5.5 The complainant agrees that the purpose of the Act is not to obtain
confessions or information, but whether the third requirement of article 1
is fulfilled is not dependent on the wording or purpose of the legislation
but rather its effect in the individual case. By interrogating the
complainant on 4 and 5 June 1998 in the absence of her lawyer, the
Kalundborg Police went beyond what her lawyer had authorised them to
question her on during counsel's absence. Prior to these interrogations,
several doctors and therapists had documented the complainant's
deteriorating mental state. It is also alleged that the police investigator
tried to force the complainant to confess to being an accomplice to
smuggling of hashish, despite there being no evidence for this. Against this
background, it is submitted that the Kalundborg Police (as a public
authority) used the instrument of solitary confinement to obtain information
and confessions in such a manner required for the purposes of proving a
violation of torture pursuant to article 1.
5.6 The complainant invokes the Committee's concluding observations on
several State reports to demonstrate that articles 1 and 16 can be
interpreted as including a general prohibition against pre-trial detention
in solitary confinement. Thus, in the concluding observations on the fourth
periodic report of Denmark, the Committee stated that: "...(c) The State
party should continue to monitor the effects of solitary confinement on
detainees and the effects of the new bill, which has reduced the number of
grounds that can give rise to solitary confinement and its length." [FN10]
It is clear from the Committee's concluding observations that solitary
confinement, particularly in cases of pre-trial detention, is considered to
have extremely serious mental and psychological consequences for the
detainee; States parties are encouraged to abolish the practice. Although
abolition is preferable, the concluding observations of the Committee reveal
that solitary confinement should be applied only in exceptional cases and
not for prolonged periods of time.
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[FN10] CAT/C/55/Add.2
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5.7 The complainant refers to other review bodies to demonstrate the harmful
effects of such confinement, including the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the
"CPT") which has produced several reports focusing on this issue. In the
CPT's report to the Danish Government following its visit to Denmark from 28
January to 4 February 2002, it stated, inter alia, that "Solitary
confinement can, in certain circumstances, amount to inhuman and degrading
treatment; in any event, all forms of solitary confinement should be as
short as possible." The Human Rights Committee, which has considered the
issue of solitary confinement in the examination of individual complaints,
country reports and general comments, as expressed its concern about its
practice. Upon consideration of Denmark's fourth period report, it noted,
inter alia, "that solitary confinement is a harsh penalty with serious
psychological consequences and is justifiable only in cases of urgent need;
the use of solitary confinement other than in exceptional circumstances and
for limited periods is inconsistent with article 10, paragraph 1, of the
Covenant. Denmark should reconsider the practice of solitary confinement and
ensure that it is used only in cases of urgent necessity." [FN11]
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[FN11] CCPR/C/DNK/99/4
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5.8 The complainant also invokes the case law of the European Court of Human
Rights in particular to the judgment, in the case of McGlinchey and Others
v. United Kingdom, [FN12] in which the Court found that article 3 "provides
that the State must ensure that a person is detained in conditions which are
compatible with respect for her human dignity, that the manner and method of
the execution of the measure do not subject her to distress or hardship of
an intensity exceeding the unavoidable level of suffering inherent in
detention and that, given the practical demands of imprisonment, her health
and well-being are adequately secured by, among other things, providing her
with the requisite medical assistance.". [FN13]
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[FN12] Application no. 50390/99.
[FN13] She also refers to the case of Price v. United Kingdom, judgment of
10 July 2001 in which the Court decided that "In considering whether
treatment is "degrading", within the meaning of Article 3, one of the
factors which the Court will take into account is the question of whether
its object was to humiliate and debase the person concerned, although the
absence of any such purpose cannot conclusively rule out a finding of
violation of Article 3.
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5.9 As to the claim that the District Court only had oral evidence before it
when it assessed the continuation of the complainant's pre-trial detention
in solitary confinement on 26 May 1998, the complainant submits that the
prison authorities should ex officio have had the complainant examined by a
doctor and then requested the Prosecutor to have her removed from solitary
confinement, upon learning that she suffered serious psychological harm. In
the complainant's view, the State party's liability for the violation of
articles 1 and 16 began on 15 May 1998 when the Kalundborg Police did not
act upon the prison physician's report in which he considered that: "The
inmate exhibited clear signs of mental instability, which can be explained
freely on the basis of general knowledge on normal people's reaction to
incarceration and solitary confinement. I assessed that there was a risk
that this condition might become worse and that it was important that the
inmate's situation could be resolved as soon as possible." On 22 May 1998,
even though the emergency service physician and crisis therapist described
the complainant as "...strongly mentally troubled by the solitary
confinement" and "claustrophobic, near-psychotic and deeply distressed",
respectively, the Kalundborg Police still ignored the fact that the
complainant was experiencing the harmful effects of her solitary
confinement.
5.10 The complainant acknowledges that the nature of the overall criminal
operation was serious but emphasises that she was only a peripheral and
minor player and thus not likely to have extensive knowledge about the
illegal operations, which were organised by her former husband and his
accomplices. Moreover, she cooperated with the police and gave them the name
of a suspect who the police failed to apprehend while at the same time
claiming that her removal from solitary confinement would jeopardise police
investigations as she might try to contact suspects who had not yet been
arrested.
5.11 On the conditions of detention in solitary confinement, the complainant
notes that the cell measured 8 m2 and had no windows, that she had no radio,
that TV was only available upon payment of a fee and that she was never
informed about the access to certain books from a local library. Whilst she
did receive certain visits from her family, the form and duration of those
visits were not sufficient to overcome her natural frustration, grief and
anxiety.
5.12 With respect to the State party's arguments on article 12, the
complainant submits that the Convention is binding on all public authorities
in Denmark, including prison authorities and prosecutors. Accordingly, an
investigation of the way in which the Kalundborg Police and Prison
authorities handled her case, by repeatedly prolonging her solitary
confinement, despite medical evidence demonstrating its harmful effects on
her, would not have interfered with the independence of the Danish
judiciary. Thus, in the complainant's view, when her representative, an
expert in the field of torture identification and research, expressed his
professional opinion to the DPP and requested an investigation into these
allegations, such an investigation should have been initiated, as prescribed
by article 12 of the Convention.
Issues and Proceedings Before the Committee:
6.1 Before considering any claim contained in a complaint, the Committee
must decide whether or not it is admissible under article 22 of the
Convention. The Committee has ascertained, as it is required to do under
article 22, paragraph 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.
6.2 With respect to the question of exhaustion of domestic remedies and the
complainant's initial argument that by failing to respond to her
representative's letter to the Director of Public Prosecutions, in which he
stated that if he did not receive a response, he would assume that domestic
remedies were deemed to have been exhausted, the Committee considers that it
is not the function of the DPP to inform counsel on possible or available
remedies for an alleged violation, and that no such inference can be drawn
from the DPP's failure to do so.
6.3 The Committee notes the State party's arguments that by failing to apply
for leave to appeal to the Supreme Court and/or for compensation under the
Administration of Justice Act, the complainant has not exhausted domestic
remedies. In the complainant's view, both remedies would have been
ineffective, as, an application for leave to appeal is only a "theoretical
possibility" and, in an application for compensation, she could not have
invoked her rights under the Convention. On the issue of compensation, the
Committee is not persuaded that, in the circumstances of the case,
compensation was a remedy that the complainant should have pursued for the
purposes of exhausting domestic remedies. As to an application for leave to
appeal, the Committee observes that although the complainant claims that an
application for leave to appeal may only have been a theoretical
possibility, she does concede that leave to appeal has been granted in
several cases. The Committee considers that mere doubts about the
effectiveness of a remedy do not absolve the complainant from seeking to
exhaust such a remedy. For this reason, the Committee finds that the
complaint is inadmissible for failure to exhaust domestic remedies, as
required under article 22, paragraph 5 (a), of the Convention.
7. Accordingly, the Committee decides:
a) that the complaint is inadmissible;
b) that this decision may be reviewed under rule 109 of the Committee's
rules of procedure upon receipt of a request by or on behalf of the
complainant containing information to the effect that the reasons for
inadmissibility no longer apply;
c) that this decision will be transmitted to the complainant, her
representative and the State party.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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