Cases violating ICCPR art 7 (potential) (2)

Note that committees can record actual or potential violations.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

ICCPR art 7

C v Australia (Committee object (1), 2002)

Remedy's assessment: Partially remedied

‘C’ was detained on arrival in Australia in 1992 and accepted as a refugee in 1995. He acquired serious mental illness in detention, and his threatening behaviour while in a delusional state led to his being sentenced to 3½ years’ gaol. With psychiatric care, he made ‘dramatic’ improvement and was deemed no longer dangerous. However, as a non-citizen with a custodial sentence exceeding 12 months, he was slated for deportation. The HRC accepted that detention had been the cause of mental illness in this man with no psychiatric history, that his mental illness was the ‘direct cause’ of his offending and that, with appropriate medical care, he was unlikely to re-offend. As well as being arbitrary and lacking judicial review, his detention became ‘cruel, inhuman or degrading treatment’ once it was evident that it was causing his deteriorating mental health. To deport Mr C would also breach article 7. The Committee recommended compensation. Mr C ultimately obtained a visa to remain in Australia, in accord with Committee Views, but he has not been compensated.

Read more on C v Australia.

Kwok v Australia (Committee object (1), 2009)

Remedy's assessment: Partially remedied

Ms Kwok fled China when her husband was arrested for corruption offences. He was later sentenced to death. She was wanted for alleged involvement in the ‘same set of circumstances’. China sought her forced repatriation without launching formal extradition proceedings, and Australia was willing to comply. Ms Kwok claimed she would not receive a fair trial in China and could also be sentenced to death. The HRC requested a stay of deportation; Australia complied. The HRC found that Australia should not deport Ms Kwok, as the risk to her life ‘would only be definitively established when it is too late’. It found potential violations of the right to life and the prohibition on torture. It also found that Ms Kwok’s 6½ years in immigration detention was arbitrary detention. Australia should not send Ms Kwok to China ‘without adequate assurances’ from the People’s Republic, and should compensate her for ‘the length of detention to which [she] was subjected’. Ms Kwok was not refouled, but neither has she been compensated.

Read more on Kwok v Australia.