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1. The authors of the
communication, dated 9 March 2002, are Messrs. Tai Wairiki Rameka, Anthony
James Harris and Tai Rangi Tarawa, all New Zealand nationals currently
detained serving criminal sentences. They claim to be victims of violations
by New Zealand of articles 7, 9, paragraphs 1 and 4, 10, paragraphs 1 and 3,
and 14, paragraph 2, of the Covenant. They are represented by counsel.
THE FACTS AS PRESENTED BY THE AUTHORS
MR. RAMEKA'S CASE
2.1 On 29 March 1996, Mr. Rameka was found guilty in the High Court at
Napier of two charges of sexual violation by rape, one charge of aggravated
burglary, one charge of assault with intent to commit rape, and indecent
assault. Pre-sentence and psychiatric reports provided to the court referred
inter alia to the author's previous sexual offences, his propensity to
commit sexual offences, his lack of remorse and his use of violence,
concluding that that there was a 20% likelihood of further commission of
sexual offences.
2.2 In respect of the first charge of rape, he was sentenced to preventive
detention (that is, indefinite detention until release by the Parole Board)
under section 75 of the Criminal Justice Act 1985, [FN1] concurrently to 14
years' imprisonment in respect of the second charge of rape, to two years'
imprisonment in respect of the aggravated burglary and to two years'
imprisonment for the assault with intent to commit rape. He was convicted
and discharged in respect of the remaining indecent assault charge, as the
sentencing judge viewed it as included in the other matters dealt with. He
appealed against the sentence of preventive detention as being both
manifestly excessive and inappropriate, and against the sentence of 14
years' imprisonment for rape as being manifestly excessive.
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[FN1] Sections 75, 77 and 89 Criminal Justice Act 1985 provide as follows:
75 Sentence of preventive detention
"(1) This section shall apply to any person who is not less than 21 years of
age, and who either-
(a) is convicted of an offence against section 128 (1) [sexual violation] of
the Crimes Act 1961; or
(b) Having been previously convicted on at least one occasion since that
person attained the age of 17 years of a specified offence, is convicted of
another specified offence, being an offence committed after that previous
conviction.
(2) Subject to the provisions of this section, the High Court, if it is
satisfied that it is expedient for the protection of the public that an
offender to whom this section applies should be detained in custody for a
substantial period, may pass a sentence of preventive detention. ...
(3A) A court shall not impose a sentence of preventive detention on an
offender to whom subsection (1)(a) of this section applies unless the court-
(a) Has first obtained a psychiatric report on the offender; and
(b) Having regard to that report and any other relevant report,-
Is satisfied that there is a substantial risk that the offender will commit
a specified offence upon release."
77 Period of preventive detention indefinite
"An offender who is sentenced to preventive detention shall be detained
until released on the direction of the Parole Board in accordance with this
Act."
89 Discretionary release on parole
"(1) Subject to subsection (2) of this section, an offender who is subject
to an indeterminate sentence is eligible to be released on parole after the
expiry of 10 years of that sentence."
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2.3 On 18 June 1997, the Court of Appeal dismissed the appeal, finding that
the sentencing judge was entitled to conclude, on the evidence, that there
was a "substantial risk" that Mr. Rameka would offend again in an aggressive
and violent manner upon release, and that there was "a high level of future
dangerousness" from which the community had to be protected. The Court
supported its conclusion by reference to Mr. Rameka's repeated use of a
knife and violence in the context of sex-related offences, and his lengthy
detention of his victim in each instance. It also found, with respect to the
sentence for rape, that the 14 year term of imprisonment was "well within"
the discretion of the sentencing judge.
MR. HARRIS' CASE
2.4 On 12 May 2000, Mr. Harris was found guilty by the High Court at
Auckland, following pleas of guilty, of 11 counts of sexual offences
occurring over a period of 3 months against a boy who turned 12 during the
period in question. They comprised two charges of sexual violation involving
oral genital contact and nine charges of indecent assault or inducing
indecent acts in respect of a boy under 12. He had previously been convicted
of two charges of unlawful sexual connection with a male under 16 and one of
indecently assaulting a male under 12, all in respect of an 11 year old boy.
On the two unlawful sexual connection counts, he was sentenced to six years'
imprisonment, and concurrently to four years' on the remaining counts.
2.5 The Solicitor-General, for the Crown, sought leave to appeal on the
basis that preventive detention, or at least a longer finite sentence,
should have been imposed. On 27 June 2000, the Court of Appeal agreed, and
substituted a sentence of preventive detention in respect of each count. The
Court referred to the warning of serious consequences given by the court
sentencing the author for his previous offences, his failure to amend his
behaviour following a sexual offenders' course in prison, the features of
breach of a child's trust in offending, the failure to heed police warnings
provided to the author against illicit contact with the child victim, as
well as the comprehensive psychiatric report defining him as a homosexual
paedophile attracted to pre-pubescent boys and the risk factors analysed in
the report. While observing that the case would warrant a finite sentence of
"not less" than seven and a half years, the Court however concluded, in the
circumstances, that no appropriate finite sentence would adequately protect
the public, and that preventive detention, with its features of continuing
supervision after release and amenability to recall, was the appropriate
sentence.
MR. TARAWA'S CASE
2.6 On 2 July 1999, Mr. Tarawa was found guilty of sexual violation by rape,
two charges of sexual violation by unlawful sexual connection, indecent
assault, burglary, two charges of aggravated burglary, two charges of
kidnapping, being an accessory after the fact, three charges of aggravated
robbery, demanding with menaces, and unlawfully entering a building.
Previously, he had committed multiple offences in three earlier incidents,
involving breaking into homes and engaging in sexually-motivated violence,
including two rapes. Subsequently, he committed further burglary and
assault. The sentencing judge found a consistent pattern of predatory
conduct, planned and executed with professionalism, exacerbated by the fact
that some offences were committed while on bail. After considering the
nature of the offending, its gravity and timespan, the nature of the
victims, the response to previous rehabilitative efforts, the time since
previous offending, the steps taken to avoid re-offending, the
(non-)acceptance of responsibility, the pre-sentence report, the
psychological report and the psychiatric assessment of a very high risk of
re-offending along with the relevant risk factors, the judge sentenced him
to preventive detention in respect of the three sexual violation charges,
and encouraged him to make use of the counseling and rehabilitative services
available in prison. He was concurrently sentenced to 4 years' imprisonment
on the aggravated burglary charge, 6 years for the kidnapping, 3 years for
demanding with menaces, 3 years for aggravated burglary and aggravated
robbery, 18 months for burglary and being an accessory after the fact, 6
years for a further kidnapping and 5 years for a further aggravated robbery,
6 months for indecent assault and 9 months for unlawful entry.
2.7 On 20 July 2000, the Court of Appeal, examining the appeal on the basis
of the author's written submissions, considered the pattern of circumstances
of each set of offences and found, on the entire background of the
appellant, his unsuccessful rehabilitation efforts as well as the
pre-sentence, psychiatric and psychological reports, that the conclusions of
substantial risk requiring the protection of the public were open to the
sentencing judge, who had properly weighed the available alternatives of
finite sentences.
2.8 On 19 September 2001, the Judicial Committee of the Privy Council
rejected all three authors' applications for special leave to appeal.
THE COMPLAINT
3.1 The authors complain, firstly, that the leading case of R v Leitch,
[FN2] where a Full Court of the Court of Appeal laid out the principles
applicable to sentences of preventive detention, was wrongly decided. The
authors contend that this decision does not offer meaningful guidance as to
how the courts should determine the existence of "substantial risk" of a
future offence. In the authors view, this element should be demonstrated to
the criminal level of proof beyond all reasonable doubt, as applied by
Canadian courts in the context of preventive detention. They further contend
that the elements set out in section 75(2) of the Criminal Justice Act are
excessively vague and arbitrary. [FN3] They argue in addition that the
Leitch decision wrongly analyses "expedient for the protection of the
public" and incorrectly overruled the previous jurisprudence of the "last
resort test". They contend that the Court did not analyse arguments in that
case that preventive detention was inconsistent with the Covenant.
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[FN2] [1998] 1 NZLR 420.
[FN3] See footnote 1, supra.
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3.2 Secondly, the authors contend that it was arbitrary to impose a
discretionary sentence on the basis of evidence of future dangerousness, as
such a conclusion cannot satisfy the statutory tests of "substantial risk of
re-offending" or "expedient for the protection of the public" in the
individual case. They point to several writers who caution about the
difficulties of predicting of future criminal behaviour and relying on
statistical classes and patterns. [FN4] In any event, they argue that on the
facts none of them fit the statutory tests of being a "substantial risk", or
that preventive detention was "expedient for protection of the public".
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[FN4] Cobley: Sex Offenders: Law, Policy and Practice (Jordans, Bristol,
2000) at 196; Brown & Pratt: Dangerous Offenders, Punishment & Social Order
(Routledge, London, 2000) at 82 and 93.
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3.3 Thirdly, the authors argue that they were sentenced without regard being
paid, by the sentencing court or on appeal, to issues of (i) arbitrary
detention, in terms of article 10, paragraphs 1 and 3, of the Covenant, ss.
9 and 23(5) of the New Zealand Bill of Rights Act 1990, the Magna Carta, and
or the Bill of Rights 1689 (Imp.); (ii) presumption of innocence, in terms
of articles 9 and/or 14, paragraph 2, of the Covenant, as interpreted by the
Committee, (iii) (the alleged absence of sufficient) periodic review of an
indeterminate sentence, in terms of article 9, paragraph 4, of the Covenant
and (iv) cruel, unusual, inhuman or degrading punishment under article 7 of
the Covenant or the Bill of Rights 1689.
3.4 As to the issue of arbitrary detention, the authors argue that there is
insufficient regular review of their future "dangerousness", and that they
are effectively being sentenced for what they might do when released, rather
than what they have done. The authors refer to jurisprudence of the European
Court of Human Rights [FN5] and academic writings [FN6] in support of the
proposition that a detainee has the right to have renewed or ongoing
detention that is imposed for preventive or protective purposes to be tested
by an independent body with judicial character. The authors observe that
under the State party's scheme, there is no possibility for release until
ten years have passed and the Parole Board may consider the case. Concerning
the presumption of innocence, the authors contend that preventive detention
should be seen as a punishment for crimes which have not yet been, and which
may never be, committed, and thus in breach of article 14, paragraph 2.
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[FN5] The authors cite Van Droogenboeck v Belgium (1982) 4 EHRR 443
(administrative detention 'at the Government's disposal' following a two
year sentence for theft) and Weeks v United Kingdom (1988) 10 EHRR 293
(discretionary life sentence for armed robbery with release on licence when
no longer a threat).
[FN6] The authors cite Harris, O'Boyle & Warbrick: Law of the European
Convention on Human Rights (Butterworth's, London, 1995) at 108-9, 146,
151-152 and 154, and Wachenfeld "The Human Rights of the Mentally Ill in
Europe under the European Convention on Human Rights", Nordic Journal of
International Law 60 (1991) at 174-175.
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3.5 In respect of the above two issues, the authors also refer to concerns
expressed by the Committee upon its consideration of the State party's third
periodic report, concerning the compatibility of the scheme of preventive
detention with articles 9 and 14. [FN7]
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[FN7] CCPR/C/79/Add.47; A/50/40, paras 179 and 186 (3 October 1995).
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3.6 As to issues under articles 7 and 10, the authors argue that due to the
10 year non-parole period applicable to their sentences, potential
treatments of sexual offenders aimed at reducing their risk and
dangerousness are not made available until close to the expiry of the 10
year period. They also appear to object, in general, to the 10 year
non-parole period. This fails to treat persons so sentenced with humanity
and dignity, as required by article 10, paragraph 1, fails to take into
account the essential aim of reformation and social rehabilitation required
by article 10, paragraph 3, and amounts to cruel, unusual, degrading and
disproportionately severe punishment, contrary to article 7.
3.7 The authors make also make several case-specific claims. Mr. Rameka
contends that the Court should not have accepted that an identified 20% risk
of re-offending amounted to a substantial risk within the meaning of the
statute, and that imposing a concurrent finite sentence at the same time as
sentence of indefinite detention was wrong in principle. In the case of Mr.
Tarawa, it is claimed that the denial of legal aid for his appeal (resulting
in Mr. Tarawa preparing his own appeal papers) was wrong. Finally, Mr.
Harris contends that his sentence was manifestly excessive, and that the
Court of Appeal improperly considered eligibility for recall, that is to
say, the liability of offender who has been released prior to serving full
sentence but who commits a further offence to be recalled to serve out a
full sentence, to be a relevant factor in favour of a sentence of preventive
detention.
THE STATE PARTY'S SUBMISSIONS ON ADMISSIBILITY AND MERITS
4.1 By submissions of 19 February 2003, the State party contests the
admissibility and merits of the communication, describing at the outset the
general features of the scheme of preventive detention. It observes that
such detention is only imposed on persons aged 21 or above after they have
been convicted, following a trial with full rights of fair trial and appeal,
in respected of certain designated offences. [FN8] The sentence is imposed
for past acts of serious offending, where it is the appropriate and
proportional penalty to respond to the nature of that offending. That
assessment of penalty is considered in the context of the offender's past
and other information about him/her, including the likelihood of future
offending.
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[FN8] The offences are (i) if committed against a child under 16, incest
(s.130 Crimes Act 1961), sexual intercourse with a girl under care or
protection (s.131), sexual intercourse with a girl under 12 (s.132),
indecency with a girl under 12 (s.133), sexual intercourse or indecency with
a girl between 12 and 16 (s.134), indecency with a boy under 12 (s.140),
indecency with a boy between 12 and 16 (s.140A), indecent assault on a man
or boy (s.141), performing or attempting anal intercourse on a person under
16 or severely subnormal (s.142), and (ii) sexual violation (s.128), attempt
to commit sexual violation (s.129), compelling an indecent act with an
animal (s.142A), attempted murder (s.173), wounding with intent (s.188),
injuring with intent to cause grievous bodily harm (s.189(1)), aggravated
wounding or injury (s.191), and throwing of acid with intent to injure or
disfigure (s.199).
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4.2 The sentence may arise in two circumstances: firstly, where a person has
previous similar convictions for specific serious (mainly sexual) offences,
and has again offended. This has existed for some 100 years, and generally
is imposed after a last warning from a sentencing judge sentencing the
offender, upon an earlier occasion, to a finite term of imprisonment.
Secondly, as a result of a 1993 amendment, a person can be sentenced to
preventive detention in respect of an offence of sexual violation,
independently of previous offences. In this case, however, additional
safeguards are built in: the Court must seek a psychiatric report and be
satisfied that there is a substantial risk of commission of a further
specified offence upon release.
4.3 Safeguards are incorporated both at the imposition stage of the
sentence, as well as the administration stage. The only court able to impose
such a sentence is the highest court of original jurisdiction, the High
Court. There is a right of appeal to the Court of Appeal, which is exercised
by most sentenced to preventive detention. Only specific offences give rise
to liability to the sentence. Psychiatric reports are, in practice, always
sought. The courts consider whether protective purposes could be adequately
served by a finite sentence of years. If the High Court does, after
consideration of the full facts of the case, impose a preventive sentence,
the Court of Appeal may instead substitute a finite sentence (as, for
example, occurred in R v Leitch). According to the criteria set out in
Leitch, the sentencing court must consider: the nature of the offences,
their gravity and time span, the category of victims and the impact on them,
the offender's response to previous rehabilitation efforts, the time elapsed
since relevant previous offences and steps taken to avoid re-offending,
acceptance of responsibility and remorse for the victims, proclivity to
offending (taking into account professional risk assessment), and prognosis
for the outcome of available rehabilitative treatment. Even if the statutory
tests are met, the sentence remains discretionary rather than mandatory.
4.4 Turning to the administration stage, there is a generally a minimum
non-parole period of 10 years, subject to the discretion of an independent
Parole Board to consider the case before that point (s.97(5)). Thereafter,
there are compulsory reviews of the detention undertaken at least annually
by the Parole Board, which is authorised to release the prisoner at its
discretion (s.97(2)). The reviews may take place even more frequently if the
Parole Board so requires, or the prisoner so requests and the Board agrees
(s.97(3)). The decisions of the Parole Board may themselves be reviewed in
the High Court.
4.5 The State party observes that preventive detention is by no means unique
to New Zealand, and that, while no communications have yet been brought to
the Committee on this issue, the European Court of Human Rights has
addressed it in several relevant cases. In V. v United Kingdom, [FN9] the
Court held that the sentence of "detention during Her Majesty's pleasure"
was neither arbitrary, inhuman nor degrading. The respondent State party had
pointed out that such a sentence enables consideration of the offender's
individual circumstances, with release occurring once it is determined to be
safe for the public to do so. Similarly, in T v United Kingdom, [FN10] the
Court, recalling States' duty to take measures for the protection of the
public from violent crime, considered that the Convention did not prohibit
States subjecting an individual to an indeterminate sentence, where
considered necessary for protection of the public.
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[FN9] (1999) 30 EHRR 121.
[FN10] Application 24724/94.
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4.6 The State party submits that it is within its discretion to resort to
sentences such as preventive detention, while acknowledging the obligation
that such sentences are carefully restricted and monitored, with appropriate
review mechanisms in place to ensure that continued detention is justified
and necessary. The European Court recognizes that once the purpose of
detention has shifted from punishment to detention for prevention purposes,
detention can become unlawful if there are no adequate systems of renewal in
place at that point. Regular review before a body properly empowered to
determine the validity of ongoing detention must be in place. The State
party argues that its Parole Board has all these characteristics: it is
independent, chaired by a former High Court judge, follows a settled
procedure, and has full powers to release prisoners. It examines a case at
least annually after ten years have passed, and possibly earlier and more
frequently. In addition, habeas corpus remains available.
4.7 While regarding the scheme under which the authors were sentenced as
fully consistent with the Covenant, the State party observes that the scheme
has since been modified to reduce the ten year non-review period to five
years, and the sentencing Court has to set an appropriate non-parole period
individually.
4.8 As to admissibility, the State party argues that the authors are not
victims within the meaning of the Optional Protocol, concerning the aspect
of the claim relating to the non-reviewability period. Further, one author
has not exhausted domestic remedies. While the authors are currently serving
sentences, the State party observes that they have not yet served the period
that they would have had to serve had they been sentenced to a finite
sentence. [FN11] Rather, they are currently serving the ordinary deterrent
part of their sentence, and the preventive aspect has yet to arise. For
Messrs. Rameka and Tarawa, any finite sentence would have been at least the
equal of the 10 year non-review period (when compulsory annual review
begins). Not having served the minimum period necessary for the offending,
they are not yet "victims" in respect to the claims concerning preventive
detention.
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[FN11] See paras 4.20 (Mr Rameka), 4.24 (Mr Tarawa), and 4.30 (Mr Harris),
infra.
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4.9 As to Mr. Harris, while he may have received a finite sentence of less
than ten years, the State party submits that he is currently far short of
the point where the preventive aspect of detention arises. Further, at that
point, the Parole Board can consider his case, and refusal to do so (which
could then make him a "victim" of preventive detention) could be reviewed by
the courts. Accordingly, none of the authors are at the present time victims
of an "actual grievance", within the meaning of the Optional Protocol,
arising from any of the particular features of the scheme of preventive
detention complained of. The State party invokes the Committee's
jurisprudence is A.R.S. v Canada, [FN12] where the Committee considered
inadmissible, on this basis, the author's complaint concerning a mandatory
supervision system that was not yet applicable to him.
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[FN12] Case No 91/1981, Decision adopted on 28 October 1981. See also T v
United Kingdom, op.cit.
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4.10 As to Mr. Tarawa, the State party submits that domestic remedies have
not been exhausted. On 10 December 2001, the Crimes (Criminal Appeals)
Amendment Act 2001 entered into force, providing the author with a right to
apply for a full re-hearing of sentence. While leave must be obtained, the
Court of Appeal has made plain that applications for re-hearing by persons
such as Mr. Tarawa will be granted as a matter of course. [FN13] The current
position for Mr. Tarawa is that if he asks, he will have a fresh appeal
against his sentence; however he has not yet applied to do so. His claim is
thus inadmissible under article 5, paragraph 2(b), of the Optional Protocol.
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[FN13] R v Smith CA 315/96, 19 December 2002.
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4.11 As to the merits, the State party argues that all the authors' claims
are unfounded. Regarding the claims under article 9, the State party argues
that it can justify continued detention because the sentence is imposed as
punishment for, and response to, proven criminal offending and because as
the prevention component increases in focus, appropriate review mechanisms
(as described above) concurrently become available. It is however first and
foremost a penalty in the same way as discretionary life imprisonment is.
4.12 The State party argues that there are many writers who accept that
there are factors and characteristics that make it more likely that a person
will re-offend; paedophilia being one example where it is generally accepted
that persons with this condition are much more likely to re-offend against
children. There are many actuarial models used to assist risk prediction,
which assign a scale of increasing values to a number of typically ten to
twelve relevant factors such as previous offending, underlying mental
conditions, previous rehabilitative success, and the like. The key question
is where the cut-off position is then set. A variety of these models, to
which New Zealand has contributed, are in operation around the world. There
is common acceptance that risk prediction based on a combination of
actuarial models and clinical assessments produces the best results. Thus,
the State party submits there is no basis in literature to support the view
that predicting future offending in a limited range of offences is so
arbitrary that sentence cannot have a preventive component.
4.13 Regarding the claims of the alleged failure of the courts to address
international standards and jurisprudence, the State party argues that if
the challenges to the consistency with the Covenant are not valid, then the
courts cannot be criticized for failure to have regard to alleged
inconsistencies. The courts' task is to interpret and apply the law, having
regard to international obligations in the case of lack of clarity or
ambiguity. In Leitch, the authors criticize the court for failing to address
these issues, but as the appellant was successful and the sentence of
preventive detention quashed, there was no need to address the broader
international issues. Subsequent to the filing of the current communication,
counsel for the authors addressed similar arguments to the Court of Appeal
in R v Dittmer. [FN14] The Court there observed that the Leitch court,
against the background of the State party's obligations, had set out the
Crown's submissions on Covenant issues with approval and pointed out that
the relationship of the new regime with the Covenant had been considered in
the Justice and Electoral parliamentary committee, and found to be
consistent.
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[FN14] CA258/01, judgment of 24 October 2002.
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4.14 In response to the authors' criticisms of the Court of Appeal's
decision in Leitch, the State party refers to the Committee's constant
jurisprudence that matters of domestic law, and its application to
particular facts, are issues for the domestic courts. [FN15] It points out
that the issues involved are very much matters of fact, eg. "dangerousness",
and the scope of particular provisions of domestic law. These issues were
fully ventilated at all levels of the domestic court system. As to the
Court's interpretation that notions such as "beyond reasonable doubt" were
inapt further to qualify the meaning of "expediency", the State party points
out that this term has always been interpreted in this manner. To the extent
that the authors may be suggesting that the Covenant imposes a standard of
"beyond reasonable doubt", the State party argues that this is relevant to
the offence, where guilt was established beyond reasonable doubt. It is not
an appropriate concept to the determination of the appropriate sentence,
which has always been recognized as an area of assessment and judicial
discretion.
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[FN15] The State party refers, by way of example, to A v New Zealand Case No
754/1997, Views adopted on 15 July 1999, at paragraph 7.3.
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4.15 As to the authors' challenge to the Court's interpretation of
"expediency", the State party observes that they seem to argue that an
insufficiently high threshold has been set. The State party contends that
this is very much a challenge of the application of a test to the particular
facts, and it was open to the sentencing judge to find that the sentence in
each case was expedient, and for the superior courts to agree. The Court of
Appeal's approach that "expedient" had a standard legislative meaning was
orthodox, and its listing of the detailed set of factors that a sentencing
court should consider before imposing preventive detention [FN16] was
appropriate.
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[FN16] See para 4.3, supra.
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4.16 On the right to presumption of innocence, the State party submits that
there can be no breach, because the authors have not been charged with any
further criminal offence. There are no fresh charges or allegations to which
the presumption can attach. They were sentenced to preventive detention as
the result of being convicted of a nominated offence through a trial that
fully respected the presumption of innocence, and satisfying many other
requirements. As such, the proper focus is not on whether the law can allow
sentencing to take into account the need to protect society based on past
offending (the State party submits that it can), but rather whether the
review mechanisms in place are adequate to enable proper assessment of the
need for continued detention once the prisoner has served the appropriate
minimum period.
4.17 As to the alleged violation of article 10, paragraphs 1 and 3, through
the provision and the timing of remedial courses, the State party observes
that what is claimed in the present case falls well short of what the
Committee has generally regarded as a violation of these provisions. [FN17]
It points out that in prison, a large range of courses is available to
prisoners, all aiming to improve the skills and understanding of a prisoner
to help rehabilitate him or her and thus reduce the risk of re-offending.
Some are specifically targeted to sexual offenders, aiming at assisting a
prisoner with learning to manage themselves in the community, avoid risk
situations and thus minimize likelihood of re-offending. The rule is that a
prisoner takes such courses near to release, as their focus is managing the
prisoner's conduct once released into the community. They are therefore most
effectively undertaken near the time of release. These courses have nothing
to do with access to psychiatric and psychological services and treatment,
or the range of general courses, which are all available throughout the
duration of the sentence. The State party doubts whether the authors have
demonstrated themselves personally to be victims, as the authors have not
specified which courses and/or treatment they have had, or any specific
inadequacies of them.
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[FN17] See, for example, Hill v Spain Case No 526/1993, Views adopted on 2
April 1997.
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MR. RAMEKA
4.18 Turning to the particular cases, the State party points out that, for
Mr. Rameka, the numerous serious charges all arose from one incident. He
knew where the victim lived, decided to rape her, broke into the house
wearing a mask, acquired a knife from the victim and subjected her to a four
hour ordeal, raping her twice as well as committing further offences. As
someone convicted of sexual violation, Mr. Rameka was eligible for
preventive detention if a psychiatric assessment was first obtained, and the
sentencing judge was satisfied there was a substantial risk of commission of
specified offence following release and further that preventive detention
was expedient for the protection of the public. Even if so satisfied, the
sentencing judge still had the discretion whether or not to impose the
sentence. The psychiatric assessment unusually quantified the risk in a
specific way ("20%") rather than, as is usual, generally describing the risk
as "high" or "very high". The State party stresses that the question of
substantial risk was not decided simply on the basis of this figure. Rather,
after analyzing the report and its reasoning and underlying factors, as well
as the circumstances of Mr. Rameka's previous and present offences, the
judge considered preventive detention warranted. The Court of Appeal agreed,
noting inter alia the various indices in the psychiatric report, the
similarities to the previous offending involving a knife and sustained
detention, and the worrying factors of the present offending.
4.19 As to the finite sentence of 14 years' imprisonment for the second rape
imposed alongside the sentence of preventive detention, the State party
finds it difficult to identify any objectionable aspect to this issue. It is
important to recognize the individual crimes committed, not least for the
community and in symbolic terms, even if the sentence is served
concurrently. Moreover, concurrent finite terms can assist the Parole Board
in determining the seriousness of other offences committed at the time of
the primary offending.
4.20 Concerning his non-parole period, the State party points out that as a
result of the 14 year sentence for the second rape, according to local
regulation, he would have to serve a total of 9 years 4 months in prison on
that offence alone. Adding punishment for the other offences, there is
little doubt that a finite sentence requiring him to serve at least 10 years
in prison would have been inevitable. Thus the 10 year non-review period
arising under the preventive detention would have been the case without any
such sentence, meaning that this claim is not only inadmissible but also
unfounded, as he will then be eligible for annual review.
MR. TARAWA
4.21 As to Mr. Tarawa, the State party observes he pleaded guilty to five
separate incidents giving rise to fifteen charges, with the main charge from
the preventive detention viewpoint being a rape committed after breaking
into a woman's home. Thereafter, the woman was subjected to further sexual
indignities, abducted and taken to a money machine in order to withdraw
money for the assailant. The further incidents included breaking into a home
(holding the resident couple at gunpoint and assaulting one before they
escaped), burglary of a house, assault and robbery of a 76-year old woman,
and burglary of a farmhouse (threatening the female occupant with a knife,
forcing her to undress and tying her up before she escaped).
4.22 The sentencing judge considered Mr. Tarawa's earlier offending, where
on two occasions he broke into houses where there was a woman. On the first
occasion, he forced her to undress at knifepoint but she was able to escape.
The second time the victim was raped twice. The judge considered that the
present offence was a replica of the earlier incident, but with more signs
of professionalism. There then followed further offending, release on bail,
and the final three incidents during release on bail. Two of these were
robberies and the third another burglary of a home that had the same
hallmarks of a targeted woman with the same sexual focus.
4.23 In the High Court, both a psychologist and psychiatrist separately
identified significant risks of re-offending, with any prospects of
rehabilitation dependent upon change in a person up to then seen to have a
low motivation to improve. In the State party's view, the author poses a
risk of the highest magnitude, particularly to women, and the Court of
Appeal did not differ from the High Court's sentence.
4.24 Concerning the non-parole period, the judge noted that he would have
imposed a finite sentence of 15 to 16 years for the rape if he had not
imposed preventive detention, with the result that under local parole laws,
he would have had to serve at least 10 years before being eligible for
release. Thus, the non-review period is the same as if he had not been
sentenced to preventive detention, and, apart from being inadmissible, no
Covenant claim arises.
4.25 The issue of legal aid is particular to Mr. Tarawa. At the time, his
appeal against sentence was determined by an ex parte system on the papers,
where the Court of Appeal determined whether would-be appellants would
receive legal aid for the appeal. When the Court decided an appeal was so
lacking in merit that aid should not be given, it was faced with the dilemma
of deciding what to do with appellants in custody who could not be present
in court and who had no lawyer. Accordingly, the Court developed a system of
determining these appeals on the papers, giving the appellants an
opportunity to file written submissions. This ex parte system was
subsequently held unlawful for want of statutory authority by the Privy
Council, [FN18] and thus the State party accepts Mr. Tarawa was wrongly
denied legal aid. Since then, remedial legislation has assigned the task of
determining legal aid to an independent body with more safeguards for
appeals on the papers. At the same time, the legislation provided for all
whose appeals had been determined by a method held unlawful to seek a new
appeal, which this author has not yet done. The State party submits the
option of a fresh appeal is sufficient to redress this claim.
-------------------------------------------------------------------------------------------------------------------------------
[FN18] R v Taito (2002) 6 HRNZ 539.
-------------------------------------------------------------------------------------------------------------------------------
MR. HARRIS
4.26 The State party observes, in respect of this author, that he was
convicted of 11 counts of sexual offending against a young boy. The
sentencing judge sentenced him to a finite term of six years' imprisonment.
The Crown appealed against the sentence, arguing that preventive detention
should have been imposed, or that the finite sentence was manifestly
inadequate and the Court of Appeal agreed. The State party points out that
this represents an example of the usual preventive detention case - the
author had previous paedophile convictions, served a jail term for them, and
on previous sentencing was warned about the likely imposition of preventive
detention if he committed a repeat offence.
4.27 In the present case, the author ingratiated himself with a young boy,
inducing him to engage in various sexual activities. Police warned him to
stay away from the boy after suspicions were aroused, but despite the
warning the author was unable to resist further contact and committed
further offences. The psychiatric report confirmed that he was a homosexual
paedophile with an interest in pre-pubescent boys. Previous rehabilitation
efforts, including the State party's specialized sex offender programme, had
not worked, and such was his predilection to this offending that he
continued despite a warning and knowledge that he was being observed by
police. Balancing these factors, the Court of Appeal considered that a
finite sentence would not adequately protect the public and that preventive
detention was required.
4.28 In response to the author's argument that his sentence was manifestly
excessive, the State party submits that the Court of Appeal's conclusion,
upheld by the Privy Council, was plainly open to it. The author represents a
serious risk to the public, with a finite sentence resulting in release
providing inadequate protection. If the author manages to change, he can
then be released with appropriate safeguards but until that point, the
community and particularly young boys should not be exposed to his predatory
conduct.
4.29 As to his eligibility for review of detention, the State party observes
that the Court of Appeal would have imposed a finite sentence of seven and a
half years on the author as being appropriate punishment, were it not for
the need to protect the public. Unlike Mr. Tarawa, the author can
theoretically argue that as a result of preventive detention he is subject
to longer non-parole period than if a finite sentence had been imposed.
However, the State party submits that once the author reached the point
where parole eligibility would have arisen under the applicable finite
sentence, he can apply for release to the Parole Board (which has
discretionary jurisdiction to consider requests prior to ten years of
preventive detention elapsing). Only in the event of the refusal of such a
claim by the Parole Board, itself subject to judicial review, could the
author claim to be a victim of the non-parole period.
COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5.1 The authors, in reply, argue that the Covenant is not directly
implemented in domestic law, and that the leading case of R v Leitch only
pays lip service to the Covenant. They consider that the advice of the State
party's authorities to Parliament assessing that the amendments to the
preventive detention legislation were consistent with the Covenant was
self-serving.
5.2 The authors observe that in the European Court cases of V. v United
Kingdom [FN19] and T v United Kingdom [FN20] a specific "tariff" period had
been set for each individual period, representing the term of punishment
during which release was precluded. Only thereafter did the preventive
aspect of further detention arise. The authors contend that they do not
contest the lawfulness of their preventive sentences per se, but rather that
an individualised "tariff" period, followed by regular reviews, should have
been set in each case. In the authors' cases, the blanket ten year
non-parole period applies to all of them before the reviews begin. They
argue that there has been no instance of the exercise of the Parole Board's
discretionary power to review a case earlier than after ten years; this
possibility is therefore illusory. They also allege that habeas corpus and
judicial review applications would most likely be unsuccessful, and in any
case these remedies would only arise after the ten year non-parole period
had passed.
-------------------------------------------------------------------------------------------------------------------------------
[FN19] Op.cit.
[FN20] Ibid.
-------------------------------------------------------------------------------------------------------------------------------
5.3 Concerning the assessment of their future "dangerousness", the authors
adduce academic studies and writings suggesting flaws or imprecisions in
common methods of calculation of risk prediction. They contend that the
individual psychiatric assessments in their case were inadequate, that the
courts were to ready to rely upon them and that thus their resulting
detention became arbitrary, and refer to Canadian domestic caselaw on that
State's preventive detention regime, where, according to them,
"dangerousness" must be shown beyond reasonable doubt, a week's notice must
be provided prior to hearing, two psychiatrists must be heard, and reviews
of "dangerousness" occur after three years and then every two years.
5.4 As to the provision of courses in prison, the authors clarify that they
only refer to the non-provision of courses related to their "dangerousness"
until near the time of release. They therefore claim that they have no
opportunity to cease to be "dangerous" earlier in their sentence, which
should occur as early as possible. This is said to be cruel and unusual,
lacking humanity and not in line with the notion of rehabilitation.
Moreover, early parole requests may be adversely affected by failing to have
undergone treatment.
5.5 As to the admissibility of Mr. Tarawa's case on the question of appeal
possibilities, it is contended that the new appeal only became possible as a
result of the recent decision of the Court of Appeal in R v Smith, [FN21]
subsequent to the submission of the communication. In any case, it would be
futile as a recent appeal against preventive detention was dismissed in
another case. [FN22]
-------------------------------------------------------------------------------------------------------------------------------
[FN21] Op.cit.
[FN22] R v Dittmer, op. cit.
-------------------------------------------------------------------------------------------------------------------------------
5.6 As to the issue in Mr. Rameka's case of imposition of a finite sentence,
alongside preventive detention, the author rejects the State party's
argument that there is no authority in objection to such a practice. He
refers, by analogy, to English criminal practice, which regards the
imposition of a finite sentence alongside a life sentence as mistaken.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 As to whether the authors can claim to be victims of a violation of the
Covenant concerning preventive detention, as they have not yet served the
amount of time that they would have had to have served to become eligible
for release on parole under finite sentences applicable to their conduct,
the Committee observes that the authors, having been sentenced to and begun
to serve such sentences, will become effectively subject to the preventive
detention regime after they have served 10 years of their sentence. As such,
it is essentially inevitable that they will be exposed, after sufficient
passage of time, to the particular regime, and they will be unable to
challenge the imposition of the sentence of preventive detention upon them
at that time. This situation may be contrasted with that in A.R.S. v Canada,
[FN23] where the future application of the mandatory supervision regime to
the prisoner in question was at least in part dependent on his behaviour up
to that point, and thus speculative at an ealier point of time in the
imprisonment. The Committee accordingly does not consider it inappropriate
that the authors argue the compatibility of their sentence with the Covenant
at an earlier point, rather than when ten years' imprisonment have elapsed.
The communication is thus not inadmissible for want of a victim of a
violation of the Covenant.
-------------------------------------------------------------------------------------------------------------------------------
[FN23] Op. cit.
-------------------------------------------------------------------------------------------------------------------------------
6.3 As to Mr. Tarawa's case, the Committee observes that after flaws in the
earlier system of disposing appeals on the papers after a denial of legal
aid became apparent, the State party passed the Crimes (Criminal Appeals)
Amendment Act 2001 entitling those affected, including Mr. Tarawa, to apply
for re-hearing of dismissed appeals (in Mr. Tarawa's case, the Court of
Appeal's dismissal on 20 July 2000 of his conviction and sentence of 2 July
1999). Such an appeal could have challenged the appropriateness, as a matter
of domestic law, of imposing preventive detention in view of the particular
facts of his case, independently of appellate decisions on the penalty
applicable to the facts of other cases. Accordingly, the Committee observes
that Mr. Tarawa failed to exhaust a domestic remedy available to him to
challenge his sentence at the time of submission of the communication. Thus,
his claims relating to the imposition of preventive detention and
consequential claims are inadmissible under article 5, paragraph 2(b), of
the Optional Protocol. As to the residual claim concerning the earlier
denial of legal aid, the Committee observes that for the same reasons, this
claim was deprived of object before the submission of the communication upon
the provision of the new ability to appeal coupled with a fresh assessment
of legal aid; as a result, this claim is inadmissible under article 2 of the
Optional Protocol.
6.4 As to the contention that certain rehabilitation courses were not
available to the authors in prison, contrary to articles 7 and 10 of the
Covenant, the Committee notes that the authors have not specified in any
detail which courses they claim they should be entitled to undertake at an
earlier point of imprisonment, and that the State party has observed that
all standard courses are available throughout the term of imprisonment,
while certain courses of immediate relevance to post-release situations are
conducted prior to release in order to enhance the appropriateness of
timing. The Committee accordingly considers that the authors have failed to
substantiate, for the purposes of admissibility, that the timing and content
of courses made available in prison, give rise to claims under articles 7
and 10 of the Covenant.
6.5 As to whether the imposition of preventive detention in the cases of
Messrs. Harris and Rameka ('the remaining authors') is consistent with the
Covenant, the Committee considers this claim to have been sufficiently
substantiated, for purposes of admissibility, under articles 7, 9,
paragraphs 1 and 4, 10, paragraphs 1 and 3, and 14, paragraph 2, of the
Covenant.
CONSIDERATION OF THE MERITS (CASES OF MESSRS. RAMEKA AND HARRIS)
7.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1 of the Optional Protocol.
7.2 The Committee observes at the outset that Mr. Harris would have been
subjected, according to the Court of Appeal, to a finite sentence of "not
less than" seven and a half years with respect to his offences. Accordingly,
Mr. Harris will serve two and a half years of detention, for preventive
purposes, before the non-parole period arising under his sentence of
preventive detention expires. Given that the State party has demonstrated no
case where the Parole Board has acted under its exceptional powers to review
proprio motu a prisoner's continued detention prior to the expiry of the
non-parole period, the Committee finds that, while Mr. Harris' detention for
this period of two and a half years is based on the State party's law and is
not arbitrary, his inability for that period to challenge the existence, at
that time, of substantive justification of his continued detention for
preventive reasons is in violation of his right under article 9, paragraph
4, of the Covenant to approach a "court" for a determination of the
'lawfulness' of his detention over this period.
7.3 Turning to the issue of the consistency with the Covenant of the
sentences of preventive detention of both the remaining authors, Messrs.
Rameka and Harris, once the non-parole period of ten years expires, the
Committee observes that after the ten-year period has elapsed, there are
compulsory annual reviews by the independent Parole Board, with the power to
order the prisoner's release if they are no longer a significant danger to
the public, and that the decisions of the Board are subject to judicial
review. The Committee considers that the remaining authors' detention for
preventive purposes, that is, protection of the public, once a punitive term
of imprisonment has been served, must be justified by compelling reasons,
reviewable by a judicial authority, that are and remain applicable as long
as detention for these purposes continues. The requirement that such
continued detention be free from arbitrariness must thus be assured by
regular periodic reviews of the individual case by an independent body, in
order to determine the continued justification of detention for purposes of
protection of the public. The Committee is of the view that the remaining
authors have failed to show that the compulsory annual reviews of detention
by the Parole Board, the decisions of which are subject to judicial review
in the High Court and Court of Appeal, are insufficient to meet this
standard. Accordingly, the remaining authors have not demonstrated, at the
present time, that the future operation of the sentences they have begun to
serve will amount to arbitrary detention, contrary to article 9, once the
preventive aspect of their sentences commences.
7.4 Furthermore, in terms of the ability of the Parole Board to act in
judicial fashion as a "court" and determine the lawfulness of continued
detention under article 9, paragraph 4, of the Covenant, the Committee notes
that the remaining authors have not advanced any reasons why the Board, as
constituted by the State party's law, should be regarded as insufficiently
independent, impartial or deficient in procedure for these purposes. The
Committee notes, moreover, that the Parole Board's decision is subject to
judicial review in the High Court and Court of Appeal. In the Committee's
view, it also follows from the permissibility, in principle, of preventive
detention for protective purposes, always provided that the necessary
safeguards are available and in fact enjoyed, that detention for this
purpose does not offend the presumption of innocence, given that no charge
has been laid against the remaining authors which would attract the
applicability of article 14, paragraph 2, of the Covenant. [FN24] As the
detention in the remaining authors' cases for preventive purposes is not
arbitrary, in terms of article 9, and no suffering going beyond the normal
incidents of detention has been suggested, the Committee also finds that the
remaining authors have not made out any additional claim under article 10,
paragraph 1, that their sentence of preventive detention violates their
right as prisoners to be treated with respect for their inherent dignity.
-------------------------------------------------------------------------------------------------------------------------------
[FN24] See also Wilson v The Philippines Case No 868/1999, Views adopted on
30 October 2003, at paragraph 6.5.
-------------------------------------------------------------------------------------------------------------------------------
8. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it disclose a violation of
article 9, paragraph 4, of the Covenant with respect to Mr. Harris.
9. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is under an obligation to provide Mr. Harris with an effective remedy,
including the ability to challenge the justification of his continued
detention for preventive purposes once the seven and a half year period of
punitive sentence has been served. The State party is under an obligation to
avoid similar violations in the future.
10. Bearing in mind that, by becoming a State party to the Optional
Protocol, the State party has recognised the competence of the Committee to
determine whether there has been a violation of the Covenant or not and
that, pursuant to article 2 of the Covenant, the State party has undertaken
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognised in the Covenant, the Committee wishes to
receive from the State party, within 90 days, information about the measures
taken to give effect to its Views. The State party is also requested to
publish the Committee's Views.
_______________________________
Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.
The texts of individual opinions signed by Committee members Mr. Nisuke
Ando, Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr.
Maurice Glèlè Ahanhanzo, Mr. Walter Kälin, Mr. Rajsoomer Lallah, Mr. Ivan
Shearer, Mr. Hipólito Solari Yrigoyen and Mr. Roman Wieruszewski are
appended to the present document.
APPENDIX
INDIVIDUAL OPINION OF COMMITTEE MEMBERS MR. PRAFULLACHANDRA NATWARLAL
BHAGWATI, MS. CHRISTINE CHANET, MR. GLÈLÈ AHANHANZO AND MR. HIPÓLITO SOLARI
YRIGOYEN (DISSENTING IN PART)
In stating, in paragraph 7.2 of its decision, that Mr. Harris' detention is
based on the State party's law and is not arbitrary, the Committee proceeds
by assertion and not by demonstration.
In our view, the arbitrariness of such detention, even if the detention is
lawful, lies in the assessment made of the possibility of the commission of
a repeat offence. The science underlying the assessment in question is
unsound. How can anyone seriously assert that there is a "20% likelihood"
that a person will re-offend?
To our way of thinking, preventive detention based on a forecast made
according to such vague criteria is contrary to article 9, paragraph 1, of
the Covenant.
However far any checks made when considering parole may go to prevent
violations of article 9, paragraph 4, of the Covenant, it is the very
principle of detention based solely on potential dangerousness that I
challenge, especially as detention of this kind often carries on from, and
becomes a mere and, it would not be going too far to say, an "easy"
extension of a penalty of imprisonment.
While often presented as precautionary, measures of the kind in question are
in reality penalties, and this change of their original nature constitutes a
means of circumventing the provisions of articles 14 and 15 of the Covenant.
For the defendant, there is no predictability about preventive detention
ordered in such circumstances: the detention may be indefinite. To rely on a
prediction of dangerousness is tantamount to replacing presumption of
innocence by presumption of guilt.
Paradoxically, a person thought to be dangerous who has not yet committed
the offence of which he/she is considered capable is less well protected by
the law than an actual offender.
Such a situation is a source of legal uncertainty and a great temptation to
judges who may wish to evade the constraints of articles 14 and 15 of the
Covenant.
[Signed]: Prafullachandra Natwarlal Bhagwati
[Signed]: Christine Chanet
[Signed]: Maurice Glèlè Ahanhanzo
[Signed]: Hipólito Solari Yrigoyen
[Adopted in English, French and Spanish, the French text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION OF COMMITTEE MEMBER MR. WALTER KÄLIN (DISSENTING IN PART)
The Committee concludes, in paragraph 7.2 of its Views, that Mr. Harris will
serve two and a half years of detention, for preventive purposes, before he
can approach the Parole Board after a total of ten years of detention and
that the denial of access to a "court" during this period amounts to a
violation of his right under article 9, paragraph 4, of the Covenant. This
finding is based on the assumption that Mr. Harris would have been
subjected, according to the Court of Appeal, to a finite sentence of "not
less" than seven and a half years with respect of his offences. While the
Court of Appeal did, indeed, observe that the case would warrant a finite
sentence of "not less" than seven and a half years, it did not impose such a
finite sentence, but rather substituted a sentence of preventive detention
from the outset. Finite sentences are to be proportionate to the seriousness
of the crime and the degree of guilt, and they serve multiple purposes,
including punishment, rehabilitation and prevention. In contrast, as is
clearly spelled out in section 75 of the State party's Criminal Justice Act
1985, preventive detention does not contain any punitive element, but serves
the single purpose of protecting the public against an individual in regard
to whom the court is satisfied "that there is a substantial risk that [he]
will commit a specified offence upon release." Although preventive detention
is always triggered by the commission of a serious crime, it is not imposed
for what the person concerned did in the past, but rather for what he is,
i.e. for being a dangerous person who might commit crimes in the future.
While preventive detention for the purpose of protecting the public against
dangerous criminals is not prohibited as such under the Covenant and its
imposition sometimes cannot be avoided, it must be subject to the strictest
procedural safeguards, as provided for in article 9 of the Covenant,
including the possibility for periodic review, by a court, of the continuing
lawfulness of such detention. Such reviews are necessary as any human person
has the potential to change and improve, i.e. to become less dangerous over
time (e.g. as a consequence of inner growth or of a successful therapy, or
as a result of an ailment reducing his physical abilities to commit a
specific category of crimes). In the present circumstances, Mr. Harris did
not receive any finite sentence aimed at sanctioning past conduct, but was
detained for the sole reason of protection of the public. Therefore, I
conclude that his right to "take proceedings before a court, in order that
that court may decide without delay on the lawfulness of his detention and
order his release if the detention is not lawful" (article 9, paragraph 4)
was not only violated during the last two and a half years of the first ten
years of preventive detention, but also during that whole initial period.
For the same reasons, I would find that the detention over the same initial
period of 10 years prior to review by the Parole Board would also be in
violation of article 9, paragraph 4, with respect to Mr. Rameka.
[Signed]: Walter Kälin
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION OF COMMITTEE MEMBER MR. RAJSOOMER LALLAH (DISSENTING)
I am unfortunately unable to join the majority in the Committee in their
conclusion that there has been no violation of the Covenant except in the
case of Mr. Harris where a violation was found in respect of article 9,
paragraph 4, of the Covenant (paragraph 7.2 of the Committee's Views). Nor
do I agree, for the reasons explained in Paragraph 2 of this Separate
Opinion, that the Committee should have declared the communication
admissible only in respect of articles 7, 9, paragraphs 1 and 4, 10,
paragraphs 1 and 3, and, finally, 14, paragraph 2, of the Covenant
(paragraph 6.5 of the Views), and not articles 14 and 15, paragraph 1.
Admittedly, the authors would appear, from paragraph 1 of the Views, to have
mentioned particular provisions of the Covenant. However, under the Optional
Protocol, authors need only aver facts and offer submissions and arguments
in support of their complaint so that the State party may be given an
opportunity to address them. Indeed, many authors have done so in the past.
And it in the province of the Committee to consider and determine, in the
light of all the information provided by the authors and the State party,
which particular provisions of the Covenant are or are not relevant. In any
event, in considering the application or interpretation of particular
provisions of the Covenant, it may be necessary to consider the impact of
other provisions of the Covenant, provided always that both sides have been
given the opportunity of addressing the particular facts, submissions or
arguments put forward by the other party.
The complaint of the authors covers a number of issues. The most important
among these is, in my view, their contention that preventive detention in
their case is inconsistent with the Covenant, in particular, in that they
were effectively being sentenced and punished for what they might do when
released, rather than for what they have done, that is to say, they were
being punished for crimes which had not been, and which might never be,
committed. This complaint requires, in my view, consideration of the
application of articles 14 and, also, 15, paragraph 1, of the Covenant.
With respect, the majority in the Committee would appear to have simply
assumed that the "preventive detention" prescribed in New Zealand law
expressly as a "sentence" or penalty for certain criminal offenses is
legitimate under article 9 of the Covenant. Undoubtedly, the provision in
the second sentence of article 9, paragraph 1, of the Covenant leaves it to
States parties to determine the grounds, and the procedure in accordance
with which, a person may be deprived of his liberty
As the Committee has pointed out as far back as 1982 in General Comment No.
8 in relation to article 9 of the Covenant, paragraph 1 of that article is
applicable to all deprivations of liberty, whether in criminal cases or such
other cases as mental illness, vagrancy, drug addiction, educational
purposes and immigration control, etc. However, both the grounds and the
procedure required to be prescribed by law under article 9, paragraph 1,
must be consistent with the other rights recognised in the Covenant.
It is axiomatic, therefore, that where one of the grounds relied upon is a
certain type of conduct, in particular circumstances, which is created into
a criminal offence and sanctioned by law by deprivation of liberty, then not
only must the particular offence created but its sanction as well must
comply with the guarantees provided in article 15, paragraph 1, of the
Covenant. In my view, two important features, among others, characterise
article 15, paragraph 1. Firstly, a criminal offence relates only to past
acts. Secondly, the penalty for that offence can only relate to those past
acts. It cannot extend to some future psychological condition which might or
might not exist in the offender some ten years thereafter and which might or
might not lead an offender who has already purged the punitive part of his
sentence to be exposed to the risk of further detention. Further, the trial
for such offences and the sanction to be imposed must also satisfy the
requirements of a fair trial guaranteed under article 14 of the Covenant.
Rape is undoubtedly a serious offence and violence against women requires
the adoption of all appropriate measures by a State party to deal with the
problem, including penalisation, which meets the guarantees of articles 14
and 15 of the Covenant, and treatment, reformation and social rehabilitation
of offenders which the State party is under an obligation to undertake in
pursuance of article 10, paragraph 3, of the Covenant. There is further
nothing which would prevent a State party from adopting measures to
supervise and effectively monitor, administratively or by the Police, the
behaviour of past offenders on release, in circumstances where there are
reasonable and good grounds for apprehending their re-offending.
Now, according to the information provided by the authors and the State
party, it would seem that that the minimum period of preventive detention
was legislatively fixed at the relevant time to 10 years and has now been
reduced to 5 years, but is not subject to a maximum period. This maximum
period of detention is thus removed from the jurisdiction of the trial Court
and is left to a Parole Board, with the result that the trial Court is
legislatively prevented from passing a finite sentence. The State party
considers that the legislatively fixed minimum period of 10 years is the
punitive part of the sentence, the Parole Board being entrusted with the
competence of periodically determining the finality of the sentence, on the
reasoning that the sentence becomes preventive and, in principle, without a
maximum limit. This in itself would clearly raises a serious question of
proportionality.
I note that the material before the Committee indicates that the detention
following the so-called punitive period continues in prison. In these
circumstances, the "punitive" and "preventive" parts of the sentence become,
in reality, a distinction without a difference. When stripped of the
colourable statutory device which purportedly confers power to sentence on
the trial Court, the reality is that, in substance and in practice, it is
only part of the sentence which is left to the trial Court (and that too at
a legislatively fixed minimum over which the trial Court has no control or
discretion). The rest of the sentence is left in the hands of an
administrative body, without the due process guarantees of article 14. There
is of course nothing wrong in legal measures enabling early release, but
enabling an administrative body to determine in effect the duration of the
sentence beyond the statutory minimum is another matter.
I would thus conclude as follows:
i) While it is legitimate to consider past conduct, good or bad, as a
relevant factor in determining sentence, a violation of article 15,
paragraph 1, of the Covenant has occurred, because that article only permits
the criminalization and sanctioning, by law, of past acts but not acts which
it is feared might occur in the future.
ii) A violation of article 15, paragraph 1, has occurred, also because the
law does not prescribe a finite sentence to be imposed by the trial Court.
iii) A violation of article 14, paragraph 1, has occurred in that a fair
trial requires that the Court before which a trial is conducted must have
the jurisdiction to pass a definitive sentence and not one that is
legislative fixed to a minimum of years. Furthermore, the law of the State
party, in effect, delegates this jurisdiction to an administrative body
which will determine the length of the sentence at some time in the future,
without the due process guarantees prescribed under article 14 of the
Covenant.
iv) A violation of article 14, paragraph 2, has also occurred because an
anticipatory assessment of what may happen after a lapse of 10 years or so,
even before the benefits of treatment, reformation and social rehabilitation
required under article 10, paragraph 3, of the Covenant have taken place,
could not conceivably meet the essential burden of proof required. In this
regard, though relevant in determining sentence, even previous convictions
concerning past criminal conduct require to be proved beyond reasonable
doubt where these are disputed by the person accused.
v) It is not correct, therefore, to find a violation of article 9, paragraph
4, of the Covenant, as it is inapplicable in the light of the above
approach. If a finding of a violation of article 9 is at all necessary, then
it would be article 9, paragraph 1, because the State party has failed to
construe it in the light of other applicable provisions of the Covenant, in
particular articles 14 and 15 of the Covenant. But a violation of these
latter articles or relevant provisions of those articles has already been
found.
[Signed]: Rajsoomer Lallah
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION OF COMMITTEE MEMBERS MR. SHEARER AND MR. ROMAN
WIERUSZEWSKI, IN WHICH COMMITTEE MEMBER MR. NISUKE ANDO JOINS (DISSENTING IN
PART)
In our view, the reasons for deciding that the State party is not in
violation of the Covenant in respect of the sentence of preventive detention
imposed on Mr. Rameka, with which we agree, apply equally to the case of Mr.
Harris. The ground of distinction between the cases of the two remaining
authors, drawn by the Committee, is that in the case of Mr. Rameka a finite
sentence of fourteen years imprisonment was imposed on one count of the
indictment to be served concurrently with the sentence of preventive
detention imposed on another count. In the case of Mr. Harris, the
concurrent finite sentence would have been seven and a half years, had the
Court of Appeal not decided that a sentence of preventive detention was
justified for the protection of the community thus leaving a gap of two and
a half years between the expiry of that potential sentence and the end of
the non-parole period of the sentence of preventive detention (at ten
years).
The author himself did not advance any argument before the Committee based
upon an actual or hypothetical non-review "gap" period.
It is not appropriate, in our opinion, to separate indefinite preventive
detention into punitive and preventive segments. Unlike finite sentences,
which are based on the traditional purposes of imprisonment - to punish and
to reform the offender, to deter the offender and others from future
offending, and to vindicate the victim and the community - sentences of
preventive detention are designed solely to protect the community against
future dangerous conduct by an offender in respect of whom past finite
sentences have manifestly failed to achieve their aims.
Under the State party's law applicable to the authors a sentence of
preventive detention runs for ten years before the sentence may be reviewed
by the Parole Board (whose decisions are subject to judicial review). As a
result of a recent amendment to that law, the non-review period has been
shortened to five years. Even the longer period cannot be regarded as
arbitrary or unreasonable in the light of the conditions governing the
imposition of such a sentence. We consider that the State party's law in
respect of preventive detention cannot be regarded as contrary to the
Covenant. In particular, article 9, paragraph 4, of the Covenant cannot be
construed so as to give a right to judicial review of a sentence on an
unlimited number of occasions.
[Signed]: Ivan Shearer
[Signed]: Roman Wieruszewski
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION OF COMMITTEE MEMBER MR. NISUKE ANDO (DISSENTING IN PART)
I concur fully with the opinion of Messrs. Shearer and Wieruszewski.
Moreover, I would like to add the following:
The majority Views seem to find a violation of article 9, paragraph 4, in
the case of Mr. Harris on the assumption that the period of imprisonment
under the relevant New Zealand law should be divided into a punitive
detention part, which consists of a definite or fixed time-period
(non-parole period) and a preventive detention part, which consists of
indefinite or flexible time-period. In my view, this assumption of a
division is artificial and not valid.
In many other States parties to the Covenant, domestic courts often sentence
a convict to imprisonment for flexible time-period (e.g. five to ten years)
so that, while he/she must be imprisoned for the shorter time-period (five
years), he/she can be released before the longer time-period (ten years)
depending on his/her conditions of improvement or amelioration. In
substance, this sentencing of imprisonment for a flexible period of time is
comparable to the regime of preventive detention under the New Zealand law.
The term "preventive detention" may give an impression that it is primarily
detention of administrative nature as opposed to detention of judicial
nature. However, the Committee should look into not the name but the
substance of any institution of law of a State party in determining its
legal character. In other words, if the Committee considers the sentencing
of imprisonment for a flexible period of time to be compatible with the
Covenant, there is no reason why it should not do the same with preventive
detention under the New Zealand law. In fact, article 31, paragraph 2, of
the Covenant requires that the Committee should represent "the principal
legal systems" of the world.
[Signed]: Nisuke Ando
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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