Continued detention and no social rehabilitation after serving punitive sanctions in New Zealand

Facts

The author is a national of New Zealand who has committed several crimes (namely, sexual violence on minors, drug offences, kidnapping). He was sentenced twice,  to eight and ten years in prison. The author has appealed against his convictions but not the sentences imposed, which were all rejected in domestic courts and by the Working Group on Arbitrary Detention. He claims that he has been detained arbitrarily. He submits a violation of article 2 (2) and (3) of the Covenant because he claims there is no effective remedy for violations of the Covenant since it is not incorporated in domestic law. He also submits a violation of articles 9 (4) and 14 (1) of the Covenant because he claims the Parole board that denied him parole is not independent nor impartial. He also claims that the State party did not offer him with sufficient rehabilitative opportunities thereby violating articles 9 (1) and 10 (3) of the Covenant. He also claims a violation of article 14 (1) of the Covenant.

Admissibility

The Committee considers that the author’s claims under articles 9 and 14 are incompatible with article 2 of the Covenant and thus inadmissible. The Committee considers that the author has failed to sufficiently substantiate the claims made under article 2 (3) and article 14 (1) of the Covenant and declares these claims inadmissible. Concerning the claimed violations under article 9 (4) and 14 (1), the Committee considers that the author has not fulfilled his obligation to exhaust remedies because he did not challenge the independence of the Board before domestic courts. The case is admissible as regards the alleged violations of articles 9 (1) and 10 (3) of the Covenant.

Merits

The Committee does not consider that there is a violation of article 9 (1) or 10 (3) as regards the claim that the State party failed to provide him with sufficient rehabilitation. This is because, the author was offered the possibility to follow a number of rehabilitating programmes and a chance of release by participating in treatment. Moreover, the Committee considers that State party has sufficiently demonstrated that the author’s conditions, nature and length of his detention, and the risk he posed as a sexual offender, were duly assessed and respected the principles of proportionality, reasonableness, necessity and continued justification. Finally, the Committee cannot find that the State party has not demonstrated that the author’s preventive detention was sufficiently distinct from the punitive sentence.

Separate Opinions

Committee member Gentian Zyberi disagrees with the finding that the State party has sufficiently demonstrated that the author’s preventive detention was distinct from the punitive sentence. He considers that since the length of the detention increased, the State party has an increasingly heavy burden to justify the detention, which it did not sufficiently do. Most importantly it did not demonstrate that detention was used as a means of last resort. Opinion by Committee member Arif Bulkan (dissenting): Committee member considers that the cumulative period of incarceration which amounts to 16 years and the two attempts of rehabilitation is not enough to meet the standard of article 10 (3) of the Covenant. Moreover, Committee member finds that the author was detained in the same conditions under preventive detention and punitive detention, because it does not seem that the latter was aimed at rehabilitation and he did not receive specialised treatment as a Maori. Committee member gives due consideration to the author’s personal circumstances of the author who was himself abused and regularly drugged as a child and finds that the detention was not adequate and tailored to his needs.

Implementation

January 12, 2022