ICCPR Case Digest




Submission: 2016.03.08

View Adopted: 2021.07.02

A.S. v. Australia

Deprivation of liberty of a person with mental disability for an indefinite term and in the absence of regular mandatory reviews

Substantive Issues
  • Arbitrary detention
  • Conditions of detention
  • Disability
  • Protection of family
  • Protection of minorities
  • Torture / ill-treatment
Relevant Articles
  • Article 10.1
  • Article 10.3
  • Article 17
  • Article 2.1 & 26
  • Article 23
  • Article 27
  • Article 7
  • Article 9.1
  • Article 9.4
Full Text


The author, A.S is an indigenous Australian arrested for murder, robbery and attempted rape in 1995. He was found not guilty on the ground of insanity because he is suffering from several mental disorders and substance abuse. He is nevertheless ordered to be held in custody for an indefinite period of time in Alice Springs Correctional Centre, a maximum security facility. His incarceration was mandatory and upheld without regular reviews of the condition of his detention. His needs required by his mental disability were not accommodated properly. He was faced with inappropriate conditions of detention, namely extended period of isolation and disproportionate punishment, which were acknowledged by the NT Supreme Court and the Australian Human Rights Commission. The author claims that his continued detention is arbitrary and disproportionate in breach of article 9 of the Covenant, and that the conditions of his detention amount to torture or cruel, inhuman and degrading treatment and deprive him of the right to be treated with dignity according to articles 7 and 10 (1) of the Covenant. He also claims that the State has failed to provide him with rehabilitative services pursuant to articles 2 (1) and 26 of the Covenant and that his transfer to another maximum correctional facility resulted in an arbitrary interference with his family life according to article 17 (1) in conjunction with article 23 because his family could not visit him anymore. Finally, as a result of this transfer, the State has allegedly failed to respect his right to enjoy his own culture pursuant to article 27 in conjunction with article 10 (1).


The Committee considers that the administrative remedies that should have allegedly been pursued by the author, cannot be considered effective in terms of the Optional Protocol. More importantly, the Committee finds that the author’s case has no reasonable prospect for success before the High Court of Australia - a fact that has not been contested by the State party. The Committee therefore concludes that the author has exhausted all domestic remedies and his communication can be examined. As for the conditions of admissibility ratione materiae, the Committee considers that article 10 (3) of the Covenant applies not only to those who were found guilty by a criminal jurisdiction but also to inmates suffering from mental impairment such as the author. Finally, the Committee considers that the claim under article 27 of the Covenant (minority rights) is not sufficiently substantiated. In sum the claim is admissible for allegations made under articles 7, 9, 10 (1) (3), 17 (1) and 23 (1) of the Covenant.


The Committee recalls that a deprivation of liberty outside of criminal charges presents severe risks of arbitrary detention. Only a direct and imperative threat proved by the State may justify the detention (no alternative measure to detention) which must not be longer than necessary. The Committee notes that domestic courts have correctly assessed the author’s mental impairment and that his case indeed falls within the scope of the NT Criminal Code on which was based the initial period of the author’s deprivation of liberty. However, the Committee finds a number of deficiencies regarding the obligation of domestic courts to conduct regular reviews of the author’s custodial supervision order as well as a lack of important habeas corpus guarantees under article 9 (4) of the Covenant.

As regards, the place of the author’s detention in a maximum security prison, the Committee considers that the resources available in this facility are not appropriate for the custody and care of the author and that the improvement of the conditions of detention put forward by the State party cannot account for the unlawfulness of the excessively long periods spent in a maximum security environment. It therefore considers that the State party has failed to demonstrate that the legitimate aims of the author’s custodial supervision could not be achieved by lesser means, particularly since the State party had a continuing obligation under article 10 (3) to adopt reformation measures over 20 years. The author’s terms of detention are therefore arbitrary and violate article 9 (1) of the Covenant and article 10 (3) of the Covenant.

Concerning the allegations of ill-treatment the Committee considers that, taken cumulatively, the inappropriate conditions of the author’s detention, its indefinite duration and the absence of mandatory reviews, amount to a violation of article 7 of the Covenant.

Concerning the claims made under articles 17 (1) and 23 of the Covenant, the Committee finds that there is no sufficient information to conclude that the State party has violated these provisions by transferring the author to a new facility. The Committee's reasoning is therefore limited to the author’s detention in Alice Springs detention facility where it has been found that from 1995 to 2013, no measure was taken to facilitate the author’s contact with his family. During this time lapse, the State party has committed a violation of the Covenant.


The State party must provide that author with an effective remedy, make full reparations, provide adequate compensation and appropriate measures of satisfaction. It must also take measures to prevent similar violations in the future.


January 2, 2022

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