United Nations

CCPR/C/132/D/2976/2017

International Covenant on Civil and Political Rights

Distr.: General

15 February 2022

Original: English

Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2976/2017 * , ** , ***

Communication submitted by:Garri Maui Isherwood (represented by counsel, Tony Ellis)

Alleged victim:The author

State party:New Zealand

Date of communication:24 February 2017 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 4 May 2017 (not issued in document form)

Date of adoption of Views:12 July 2021

Subject matter:Continued detention after serving punitive sentences

Procedural issues:Lack of substantiation; exhaustion of domestic remedies

Substantive issues:Arbitrary detention; conditions of imprisonment; social rehabilitation; aim of imprisonment

Articles of the Covenant:2, 9, 10 and 14 (1)

Articles of the Optional Protocol:2, 3 and 5 (2) (b)

1.The author of the communication is Garry Maui Isherwood, a national of New Zealand born in 1977 and of half Maori ethnicity. He claims that the State party has violated his rights under articles 2, 9, 10 and 14 (1) of the Covenant. The Optional Protocol entered into force for the State party on 26 August 1989. The author is represented by counsel.

Facts as submitted by the author

2.1On 18 November 1999, the author was sentenced to eight years in prison for (a) sexual intercourse with a minor (of 12 to 16 years old); (b) living off the earnings of prostitution; and (c) administering morphine to a minor. On 1 July 2003, he was released on parole. On 15 July 2003, he committed five other offences: (a) sexual violation by rape of a woman over 16 (3 counts); (b) sexual violation by unlawful sexual connection with a minor over 16 (four counts); (c) kidnapping (one count); and (d) and (e) two drug offences (two counts). On 21 May 2004, he was sentenced to preventive detention with a minimum period of imprisonment of 10 years on each charge under section 87 of the Sentencing Act 2002. He was also denied parole for a minimum period of 10 years.

2.2In 2004, the author filed an appeal against his convictions but not the sentences imposed. The author’s appeal was rejected by the Court of Appeal of New Zealand on 14 March 2005. An appeal against his sentence was subsequently filed by the author at the Court of Appeal. On 3 August 2010, the Court of Appeal quashed the sentence for the two drug offences, because they were not offences for which the High Court had the power to impose preventive detention under the Sentencing Act 2002, and substituted finite sentences of four years of imprisonment for both offences. The Court of Appeal upheld the sentence of preventive detention in relation to the author’s offences involving sexual violation and kidnapping. On 21 September 2010, the Supreme Court rejected the author’s application for leave to appeal the judgment of the Court of Appeal. On 7 July 2011, he applied to the Governor-General to exercise the Royal prerogative of mercy, which was denied on 17 September 2014. The author became eligible for parole on 21 April 2014. After a hearing held on 30 April 2014, the Parole Board denied him parole.

2.3In January 2015, the author filed a complaint on similar grounds to the present communication with the Working Group on Arbitrary Detention. The Working Group concluded that there was no violation of his rights.

Complaint

3.1The author claims that he has been detained arbitrarily because, at the time of the submission of the present communication, he had served the punitive part of his sentence and was not detained for compelling reasons. In addition, he had not been given opportunities for rehabilitation and reintegration, the assessment of his continued detention was not carried out by an independent body and he was arbitrarily detained in identical conditions to those serving a punitive sentence. He claims that domestic remedies were exhausted, as he brought the matter before the Supreme Court and applied to the Royal prerogative of mercy, and that no Covenant remedy was available to him in the State party.

3.2The author submits that, in violation of article 2 (2) and (3) of the Covenant, there is no effective remedy for violations of the Covenant in New Zealand, because the Covenant is not incorporated into domestic law and the New Zealand Bill of Rights Act 1990 is only a partial attempt to enact the Covenant. The Courts therefore rely on the jurisprudence of the Supreme Court instead of the provisions of the Covenant. The author refers to the concluding observations of the Human Rights Committee on New Zealand and the Committee’s general comment No. 31 (2004), in which it states that a failure by a State party to investigate can give rise to a separate breach of the Covenant (para. 15). The author’s counsel also alleges that he himself has been criticized and threatened with sanctions by the New Zealand courts in other domestic cases for raising arguments based on the Covenant.

3.3The author argues that none of the international treaty obligations in the context of preventive detention are considered by the superior courts, let alone the Parole Board. The author submits that there is an ongoing struggle to raise Covenant issues in the State party, such as the overrepresentation of Maori people in the criminal justice system, although this issue has been outlined, notably in reports of the Human Rights Committee and the Committee against Torture and in the responses to the list of issues and questions of the Committee on the Elimination of Discrimination against Women.

3.4The author submits that New Zealand has violated articles 9 (4) and 14 (1) of the Covenant because his parole was denied by a Parole Board which is not independent and impartial and because the Board has not provided any compelling reasons for denying him parole. The author claims that the Board should have the independence and impartiality of a court, citing Human Rights Committee general comment No. 32 (2007) and the Committee’s decision in Rameka et al v. New Zealand. The author has therefore been arbitrarily detained, as no independent tribunal has the competency to release him. The author submits that independence includes at least three components: financial security, security of tenure and administrative independence and that none of those are present in the Board. The author also points out that the Board fails to hold its hearings public, as they are held in prison. The media are only rarely admitted.

3.5In Miller and Carroll v. New Zealand, the author’s counsel raised before domestic courts that the Parole Board should have the independence and impartiality of a court and contended that the domestic courts had not properly considered the State party’s obligation under the Covenant to provide an independent Board. The author submits that his counsel did not litigate the same point in the present case, as it would have been qualified as a “political treatise”.

3.6In breach of articles 9 (1) and 10 (3) of the Covenant, the author claims that the State party failed to provide him with sufficient rehabilitative opportunities prior to the completion of the non-parole period of his imprisonment, that his detention continued after that point and that the conditions of his preventive detention were the same as the punitive part of his sentence. He claims that his continued imprisonment after the non-parole period is not based on any new evidence or any new conviction and is thus arbitrary.

3.7The author argues that in view of the fact that he was not provided with any psychological treatment or rehabilitation as a sex offender with drug and alcohol problems, the State party has not been and is not in a position to show that his rehabilitation could have been achieved with less intrusive means than his continued detention. Although there was an obligation to provide him with treatment at the early stages of his sentence, the author received treatment from the special treatment unit only after the first Parole Board hearing which precluded his release, as the Board had no reason to conclude that he was not an undue risk to the public. In addition, during his initial 10 years of imprisonment, the author did not undergo any specific counselling directed at counteracting the negative effects of long-term imprisonment. There is currently no specialized treatment programme available in the State party’s prisons to address the potentially harmful effects of long-term imprisonment.

3.8The author alleges that the Parole Board has not analysed the legality of his continuing detention and has relied exclusively on the finding of one expert’s psychological report stating that he poses too high a risk to be released on parole. The author submits that there was no analysis by the psychologist or the Board of the potential of “high risk of sexually violent offending”. By using a vague risk assessment or suspicion that the author might reoffend, the Board has shown that it has no real intention of releasing preventive detainees. The author submits that the risk assessment provided by the Board did not reach international standards.

3.9The author submits that inmates sentenced to preventive detention ought to be provided with treatment from the beginning of their sentences and placed in a therapeutic environment to enhance rehabilitation chances and not kept in a standard prison. The author argues that at the expiry of his non-parole period, he was only detained for the purposes of public protection. Accordingly, he should not have been detained in the same conditions as persons still serving the punitive components of their sentences.

3.10The author submits that the State party’s current system of preventive detention and the policy surrounding the rehabilitative treatment of offenders sentenced to preventive detention has created a seemingly never-ending arbitrary detention for all offenders sentenced to preventive detention. The author has been put in an impossible and circular position, in breach of his rights under articles 10 (3) and 9 (1) of the Covenant.

3.11The author also claims a violation of his rights under article 14 (1) of the Covenant because his first lawyer failed to provide him with effective defence throughout the trial. The author argues that his right to a fair trial under article 14 (1) was breached during his trial because he was not able to defend himself by denouncing the wrongful behaviour of the complainant to his sexual assault without his previous convictions being put forward in evidence. The author claims that his treatment at both the stage of the trial court and the first appeal court did not meet fair trial guarantees, since his defence lawyer deprived him of an effective defence (not calling witnesses unless absolutely necessary and delegating all contact with witnesses to his deputy). These claims have been rejected by the Supreme Court.

State party’s observations on admissibility and the merits

4.1On 14 May 2019, the State party submitted its observations on admissibility and the merits and claimed that the complaint should be dismissed as there had been no violation of articles 2, 9, 10 and/or 14 of the Covenant. The State party did not challenge the admissibility of the communication.

4.2The State party reiterates the facts of the complaint. The State party points out that the author’s minimum non-parole period ended in April 2014. In January 2013, the author commenced a drug treatment unit programme. In April 2013, the author was removed from the programme because a drug test revealed that he had taken a prohibited drug. He commenced the programme for a second time in February 2014. It was reported by the management that he was self-sabotaging himself. The author recognized that his behaviour and health were a barrier to him engaging in the programme and chose to leave in March 2014.

4.3On 30 April 2014, the author had his first Parole Board hearing at which he was denied parole. The Board noted that: (a) the author still posed a very high risk of sexually violent reoffending; (b) the author accepted that he had a considerable amount of work to do to address the causes of his offending, linked to his excessive drug use; and (c) the author was willing to return to the drug treatment programme, to which the Board responded that this decision would depend on the prison authorities. In September 2014, a multidisciplinary team of eight prison professionals determined that it was in the best interests of the author and other prisoners that he not complete the November drug treatment programme. In October 2014, the author completed a four-session alcohol and other drug support programme.

4.4On 21 April 2015, the Parole Board held a second hearing, based on the parole assessment report and an updated psychological assessment. The Board noted that the author’s risk of sexually violent offending continued to be very high and denied him parole.

4.5On 30 June 2016, the Parole Board held another hearing and concluded that without completing his psychological treatment, demonstrating a sustained period of change and agreeing to spend time in a low-security self-care environment before he could be assessed for the adult sex offender treatment programme, the author would still pose an undue risk. The Board also noted that the author had not actively sought parole and that, in accordance with the two-year review cycle under section 21 (2) of the Parole Act 2002, the next hearing would be on 5 March 2018. On 26 August 2016, the author asked the Board to review its decision of 30 June 2016 and alleged that he had been arbitrarily detained after his parole eligibility date as he had not been held in non-punitive conditions and had been denied timely treatment, thus the assessment of his risk was inadequate to justify his detention. On 16 September 2016, the Board found that no error of law had occurred and noted that the legislation of New Zealand did not draw distinctions between punitive and non-punitive conditions in preventive detention, but rather determined custody conditions by security classification. The Board also noted that the author was currently engaged in programmes for his release and that it was not for the Board, but rather for the State party’s courts, to determine whether a detainee was being arbitrarily detained.

4.6On 17 August 2017, the author was successfully transferred to the low-security unit at Christchurch Prison. On 24 October 2017, the author was moved to the drug treatment unit to start its programme, which was to start in late November 2017. After completion of the programme, the author would be referred to the adult sex offender treatment programme.

4.7Regarding the author’s claim about breaches of article 2 of the Covenant, the State party first rejects the allegations that the counsel’s author was threatened with sanctions and criticized by the court for raising arguments based on the Covenant. The State party argues that these allegations rely on selective quotations from court judgements and lack context and substantiation. Secondly, on the incorporation of the Covenant into the State party’s legislation, the State party asserts that New Zealand has incorporated the Covenant through a range of measures, including the Bill of Rights Act, the Parole Act 2002, the Corrections Act 2004 and other administrative measures. Thirdly, regarding the availability of effective remedies, the State party argues that alongside judicial mechanisms, such as appeal and judicial review, the State party operates further administrative mechanisms which may investigate allegations of violations, such as the Ombudsman and a range of other independent bodies. The specific situation of the author regarding allegations of breach of the Covenant for access to remedies are exposed in the following paragraphs.

4.8Regarding an alleged breach of articles 9 (4) and 14 (1) of the Covenant on the basis that the Parole Board is not an independent and impartial tribunal and that the author has therefore been arbitrarily detained, the State party submits that they should be dismissed. The State party notes that the author refers to the case of Miller and Carroll v. New Zealand and points out that, since the date of that communication, the Parole Act 2002 has come into force, replacing the Criminal Justice Act 1985, and that there has therefore been a change in the regime governing the parole system since then.

4.9The State party explains that the Parole Board is an independent statutory body constituted under the Parole Act 2002, which aims to consider “offenders for parole and, if appropriate, to direct offenders to be released on parole” and then determine their release conditions and monitor their compliance. In its assessment, the Board must balance the safety of the community with the offender’s detention, based on all the relevant information available.

4.10The State party submits that article 14 (1) of the Covenant does not apply to the role of the Parole Board because it was not involved in determining the criminal charge against the author. That is the function of the courts in New Zealand. The author’s appearances before the Board were not for the purpose of determining his “rights and obligations in a suit at law”. As a preventive detainee, the author has no entitlement to parole that can be enforced by the Board. The author can, however, challenge decisions on his application for parole by judicial review at the High Court. The State party refers to the Committee’s general comment No. 31 (2004), paragraphs 16 and 17, and argues that parole proceedings similarly do not involve the determination of “any entitlement to the person concerned”, as the Committee has held in relation to prison disciplinary proceedings against prisoners. Nevertheless, if the civil arm of the law was applicable to parole proceedings, in the case of Y.L. v. Canada the Committee noted the need to look at the procedures globally, including whether there existed a right to seek judicial review by the courts of administrative decisions. If judicial review was ultimately available, recourse to that remedy would satisfy the requirement of access to a competent, independent and impartial tribunal for determination of a suit at law. In any case, the right to seek a judicial review of the Board’s decision under New Zealand law meets the criteria of article 14 (1).

4.11The State party submits that the Parole Board is sufficiently independent, impartial and adequate in procedure to constitute a “court” within the meaning of article 9 (4) even though it does not have all the attributes of a judicial court, and that the Committee has accepted it. There is no ability for the Executive or any other persons or body outside the Board to direct or influence the making of parole decisions. In addition, parole assessment procedures comply with article 9 (4) because Parole Board decisions are, without restrictions, subject to judicial review (no application for leave is required). The author receives regular periodic reviews by an independent body in line with the Committee’s general comment No. 35 (2014) and he is not arbitrarily detained. Additionally, the Working Group on Arbitrary Detention determined that the New Zealand Parole Board was sufficiently independent.

4.12On the author’s lack of rehabilitation, the State party submits that according to New Zealand law, sentences are not divided into “punitive” and “non-punitive” periods. All sentences are administered according to the purpose of the Corrections Act 2004 and offenders sentenced to preventive detention are determined by security classification. Offenders are provided with opportunities for rehabilitation and reintegration and as the release date of an offender approaches, increasing emphasis is placed on these opportunities. As explained in paragraphs 4.2 to 4.6 above, the State party submits that the author has received an array of opportunities and services aimed at his rehabilitation. The State party denies the allegations that the author has not been assessed or placed on a specialized treatment programme. The author’s communication itself refers to a psychological report made for the purpose of his assessment. The State party argues that the author has been offered a significant opportunity to reduce his risk but, owing to his own behaviour and decisions, his progress has been delayed. This statement was confirmed by the findings of the Working Group on Arbitrary Detention. The Working Group also noted that the author’s rehabilitation, at the time of its opinion, could only be achieved through preventive detention.

4.13As to the allegations that the Parole Board relied exclusively on the psychologist’s assessment of risk, the State party submits that the Board’s assessment was undertaken in a robust process, which reflected international best practice, to determine whether the offender continued to pose an undue risk to public safety. The author did not challenge the risk assessment made in relation to his case until his most recent Board hearing in 2016 (see para. 4.5 above). The Working Group on Arbitrary Detention also determined that there were sufficient guarantees around the Board’s risk assessment tools to ensure that it did not breach the author’s rights.

4.14On the allegations that the continued imprisonment of the author after his non-parole period was not based on any fresh evidence, nor was there any new conviction on the basis of which to detain him, the State party responds that there is no need for any conviction, as the sentence of preventive detention was imposed lawfully on the author following his conviction. The author appealed his conviction, but was unsuccessful. The State party refers to the finding of the Working Group on Arbitrary Detention, in which it states that the author continues to serve the sentence that was imposed at the time of his conviction in 2004 including the preventive element.

4.15The State party refers to Rameka et al. v. New Zealand and recalls that the Committee found a breach of article 9 (4) of the Covenant because the non-parole period exceeded a previously indicated finite period of imprisonment. Significantly, however, the Committee concluded that the New Zealand system of preventive detention was not arbitrary and did not breach the standards of humane treatment set out in article 10 of the Covenant.

4.16The Working Group on Arbitrary Detention found that there were compelling reasons “arising from the gravity of the crimes committed and the likelihood of the detainee’s committing similar crimes in the future” which justified the author’s ongoing preventive detention. The Working Group analysed the High Court decision to order preventive detention and the decisions of the Parole Board in 2014 and 2015 to refuse the author parole and determined that their decisions were justified. The Working Group also determined that while the author did not appear to be subject to different material conditions from prisoners serving finite sentences, the conditions of his preventive detention were sufficiently distinct from a punitive prison sentence because of the opportunities that were being provided to him to access psychological and other care aimed at his rehabilitation and release.

4.17On the argument that the author’s trials and appeals amounted to a manifest injustice and the allegation that several errors had occurred during his trial, appeals and Royal prerogative of mercy request, the State party submits that his allegations do not establish a violation of article 14 (1) of the Covenant. The State party submits that the assessment by the Governor-General of the author’s Royal prerogative of mercy application does not attract the protection of the fair trial rights under article 14 (1) because it is not a “suit at law” and it is not involved in the determination of a criminal charge. The State party further submits that the author has benefited from appeals of his conviction to the Court of Appeal and Supreme Court, and separate appeals of his sentence to the Court of Appeal and Supreme Court. He has also had his case reviewed by the Governor-General in his Royal prerogative of mercy application. The State party recalls that the Committee typically dismisses generalized complaints of unfair trials under article 14 (1).

4.18On the allegations that the author’s rights under article 14 (1) were breached because he was not able to attack the character of the complainant in his sexual assault without his previous convictions being brought in evidence, the State party refers to the report of the Ministry of Justice and recalls that an attack on the complainant’s character would not have allowed the “prosecution to have similar fact/propensity evidence about an accused admitted on a lower standard that would otherwise apply”.

Author’s comments on the State party’s submission

5.1On 31 December 2019, the author submitted his comments on the State party’s observations.

5.2The author states that the Covenant has not been given full effect in the State party’s domestic law for at least 30 years and that no Covenant remedy has ever been granted by a New Zealand court. The author refers to the fourth periodic report of New Zealand to the Committee and other periodic reports to support his argument.

5.3The author points to concluding comments or observations of the Committee on a number of countries in respect of article 2. The author notes that in the case of Miller and Carroll v. New Zealand, the Committee concluded that article 2 could not be invoked on its own, but he underlines the findings in the case of Tshidika v. Democratic Republic of the Congo and argues that in this case other violations of the Covenant under articles 9, 10 and 14 are linked with article 2 and so fit in the exception. The author also deplores the fact that the Views of the four breaches found by the Committee to date in respect of the State party have not been fully implemented. When combined with the current communication, those responses are sufficient to substantiate his assertion that the articles are inextricably linked within the meaning of Tshidika v. Democratic Republic of the Congo, in breach of article 2. The author therefore invokes a breach of article 2 (2) and (3) on the basis that no remedy is available under the Covenant in New Zealand, that this constitutes an ongoing violation and that as the Court of Appeal is relying on the jurisprudence of the Supreme Court rather than tackling the points made by the Committee in regard to breaches of the Covenant, these issues should be brought before the Committee, not the courts in New Zealand.

5.4The author reiterates his claim that the Parole Board lacks independence and refers to the case of Miller and Carroll v. New Zealand, in which the Committee concluded that the State party had failed to show that a judicial review of the lawfulness of detention was available to the authors in order to challenge their continued detention, pursuant to article 9 (4) of the Covenant. As to the State party’s argument that article 14 (1) does not apply to the Parole Board, the author argues that he was imprisoned by a criminal sentencing court and process, and the remaining part of his sentence is inextricably linked to that criminal sentencing, which is reflected in the New Zealand Sentencing Act. Given that the Board timeline is two years before a parole hearing, the Board is effectively determining whether a further two years’ imprisonment will continue, which is at the heart of the criminal law.

5.5The author submits that in August 2019, the Parole Board concluded that it was time for him to move on to a phase of reintegration in prison and that there would be a new assessment in early August 2020. The author argues that no reasons were given as to why he was assessed as an undue risk and that the delay in taking this decision was too long, as he had been in prison for 20 years. The author argues that as the Board stated in its decision that he would be detained for a further 12 months, article 14 (1) applies and was breached, in light of the Committee’s View on Miller and Carroll v. New Zealand.

5.6The author asserts that his conditions and treatment are, although for a lesser period, on a par with those of the authors in the case of Miller and Carroll v. New Zealand, but are nevertheless considerable in their own right. The author argues that asking him to attend group therapy could be categorized as showing a lack of dignity and respect or positively dangerous (physically and psychologically), as he is a Maori and considered as being at the bottom of the prison social scale because of his offence, especially when the programme does not factor in Maori elements, as recognized by the Minister of Corrections. The author argues that the State party did not provide any reason or substantiation as why his refusal to attend group therapy could not have been overcome by individual therapy in his home region prison and that he was never assessed and found unsuitable for the adult sex offender treatment programme, as alleged by the State party. Moreover, the author was particularly affected by the abrupt interruption of his painkiller medicine, which he had been taking for 10 years and to which he was addicted.

5.7According to the author, the reasons provided by the Parole Board for his continued detention are not compelling and could lead to a pathologic psychological state. The author further argues that the Board’s assessments are not tailored to Maori people, as they are overrepresented and discriminated against in the criminal justice system. According to studies, over 50 per cent of the prison population is of Maori ethnicity, but only 21 per cent of the prison staff and 7.3 per cent of psychologists are Maori. The author argues that it has been proven that the ethnicity of therapy providers is important for the therapy to succeed and for Maori prisoners to feel engaged. The author also points out that the State party has not met the recommendations of the Committee’s concluding observations on New Zealand, in which it advised that discrimination against Maori people in the administration of justice be eliminated, including through training programmes for penitentiary personnel.

5.8The author reiterates his argument on a breach of article 14 (1) and stresses that he does not seek the present communication as a further right to appeal. He further argues that article 14 (1) applies to the Royal prerogative of mercy, referring to the domestic case of Yash v. Legal Services Agency, in which the High Court determined that the prerogative of mercy was incidental to criminal proceedings and qualified for legal aid. Finally, the author points out that the establishment of the Criminal Cases Review Commission under the Crimes Cases Revision Committee Act 2019 is a recognition that the system through which he went domestically was failing.

Author’s additional observations

6.On 16 September 2020, the author informed the Committee that he had been finally released on parole on 1 September 2020 and is subject to lifetime recall for any breach of conditions.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the case is admissible under the Optional Protocol.

7.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

7.3With regard to the author’s allegation that the State party has not met its obligations under article 2 (2), the Committee recalls its jurisprudence, which indicates that the provisions of article 2 of the Covenant set forth a general obligation for States parties and cannot give rise, when invoked separately, to a claim in a communication under the Optional Protocol. The Committee reiterates that the provisions of article 2 cannot be invoked in a claim in a communication under the Optional Protocol in conjunction with other provisions of the Covenant, except when the failure by the State party to observe its obligations under article 2 is the proximate cause of a distinct violation of the Covenant directly affecting the individual claiming to be a victim. The Committee notes, however, that the author has already alleged a violation of his rights under articles 9 and 14, resulting from the interpretation and application of the existing laws of the State party, and the Committee does not consider examination of whether the State party has also violated its general obligations under article 2 (2), read in conjunction with articles 9 and 14, of the Covenant, to be distinct from examination of the violation of the author’s rights under articles 9 and 14 of the Covenant. The Committee therefore considers that the author’s claims in that regard are incompatible with article 2 of the Covenant and thus inadmissible under article 3 of the Optional Protocol.

7.4The Committee takes note of the author’s allegation that he did not have access to effective remedy in violation of article 2 (3) because the Covenant is not incorporated in the domestic law and the Courts rely on the jurisprudence of the Supreme Court rather than the provisions of the Covenant. The Committee also takes note of the State party’s argument that New Zealand has incorporated the Covenant through a range of measures, including the New Zealand Bill of Rights Act, the Parole Act 2002, the Corrections Act 2004 and other administrative measures. The Committee also takes note of the State party’s argument that alongside judicial mechanisms, such as appeal and judicial review, the State party operates further administrative mechanisms which may investigate allegations of violations, such as the Ombudsman and a range of other independent bodies. In view of the foregoing, the Committee concludes that the author has failed to sufficiently substantiate these claims for purposes of admissibility and therefore declares them inadmissible under article 2 of the Optional Protocol.

7.5The Committee takes note of the author’s allegations that the State party violated his right to a fair trial, as established in article 14 (1) of the Covenant, because his first lawyer failed to provide him with an effective defence and therefore his trial, both at the stage of the trial court and the first appeal court, did not meet the fair trial guarantees. The Committee also takes note of the State party’s arguments that the author has benefited from appeals of his conviction to the Court of Appeal and the Supreme Court and separate appeals of his sentence to the Court of Appeal and Supreme Court, and that his case was reviewed by the Governor-General in his Royal prerogative of mercy application. The Committee notes that the author has not substantiated his claim of a violation of his right to a fair trial, nor has he shown how the defence of his first lawyer before the courts gave rise to a violation of his right to be heard by a competent, independent and impartial tribunal, particularly given the fact that he was able to appeal the decisions before the courts and the Royal prerogative of mercy. In view of the foregoing, the Committee concludes that the author has failed to sufficiently substantiate these claims for purposes of admissibility and therefore declares them inadmissible under article 2 of the Optional Protocol.

7.6The Committee notes the author’s allegations under articles 9 (4) and 14 (1) of the Covenant that because the New Zealand Parole Board is not independent and impartial, he is incapable of release by an independent tribunal, resulting in his arbitrary detention. On the other hand, the Committee notes the State party’s observation that, as determined by the domestic courts, article 14 (1) does not apply to the Parole Board. The Committee also notes the State party’s information according to which, since the case of Miller and Carroll v. New Zealand, the Criminal Justice Act 1985 has been replaced by the Parole Act 2002, which triggered a change in the regime governing the parole system. The Committee further notes that the Board was not acting in a judicial capacity because it was reviewing the appropriateness (not the lawfulness) of the author’s detention.

7.7The Committee recalls its Views in Rameka et al. v. New Zealand, in which it considered whether the Parole Board “should be regarded as insufficiently independent, impartial or deficient in procedure”, and reached the conclusion that it was not shown that this standard was met, especially given that decisions of the Board were subject to judicial review. The Committee notes that the Working Group on Arbitrary Detention came to a similar conclusion when analysing the independence of the Board regarding the present case. The Committee further notes that, contrary to the case of Miller and Carroll v. New Zealand, the author has not challenged the independence of the Board before the domestic courts, nor was he denied parole in a similar manner to the case of Miller and Carroll. Accordingly, the Committee considers that the author has not fulfilled his obligation to exhaust domestic remedies and finds the alleged violations of articles 9 (1) and 14 (1), with regard to the alleged lack of independence of the Board leading to arbitrary detention, inadmissible under articles 2 and 5 (2) (b) of the Optional Protocol.

7.8The Committee notes the author’s claims regarding articles 9 (1) and 10 (3) that he has exhausted “all reasonable domestic remedies” available to him. In the absence of any objection by the State party in that connection, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

7.9Considering that the author’s remaining claims are sufficiently substantiated for purposes of admissibility, the Committee declares them admissible as raising issues under articles 9 (1) and 10 (3) of the Covenant and proceeds to examine them on the merits.

Consideration of the merits

8.1The Committee has considered the communication in the light of all the information made available to it by the parties, as provided under article 5 (1) of the Optional Protocol.

8.2The Committee notes the author’s claim under articles 9 (1) and 10 (3) of the Covenant that the State party failed to provide him with sufficient rehabilitation treatment before he first appeared before the Parole Board, thus leading to arbitrary detention. The Committee recalls that it is the duty of the State party in cases of preventive detention to provide the necessary assistance to allow detainees to be released as soon as possible without their being a danger to the community. The Committee notes the State party’s position that the author has received an array of opportunities and services aimed at his rehabilitation (see para. 4.12 above). The Committee notes in particular that the author was offered participation in a drug treatment unit programme in January 2013, one year and three months before his first Board hearing and that he was offered the opportunity to follow the same programme a second time in February 2014 (see para. 4.2 above). The Committee also notes that he was then offered the chance to complete an alcohol and other drug support programme in October 2014 (see para. 4.3 above) and that, when he eventually completed the drug treatment unit programme, he would then be considered suitable to attend the adult sex offender treatment programme (see paras. 4.5–4.6 above). The Committee also notes the assessment of the Working Group on Arbitrary Detention which considers that the author was offered a fair chance of release by participating in treatment prior to the point at which his parole was first considered by the Parole Board in April 2014 and that he continued to receive relevant treatment. The Committee therefore considers that in the particular circumstances of the present case, it is not in a position to find that the State party failed to provide timely rehabilitation treatment prior to the author first appearing before the Parole Board and thus violating his rights under articles 9 (1) or 10 (3) of the Covenant.

8.3The Committee also notes the author’s allegation that his rehabilitation was not tailored to Maori people and that they are overrepresented and discriminated against in the criminal justice system. In view of the lack of specific individual information regarding this allegation as to how this has affected the author individually, the Committee is not in a position to determine a violation for this issue.

8.4The Committee further notes the author’s claims that his detention continued after the completion of the non-parole period of his imprisonment and that the conditions of his preventive detention were the same as the punitive part of his sentence. The Committee recalls its general comment No. 35 (2014), according to which: “An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of ‘arbitrariness’ is not to be equated with ‘against the law,’ but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.” In the same general comment, the Committee emphasized that preventive detention must be subject to specific limitations in order to meet the requirements of article 9 of the Covenant. Namely, preventive detention following a punitive term of imprisonment must, in order to avoid arbitrariness, be justified by compelling reasons and regular periodic reviews by an independent body must be assured to determine the continued justification of the detention. States must only use such detention as a last resort and must exercise caution and provide appropriate guarantees in evaluating future dangers. Moreover, detention conditions must “be distinct from the treatment of convicted prisoners serving a punitive sentence and must be aimed at the detainee’s rehabilitation and reintegration into society”. The Committee notes that the Working Group on Arbitrary Detention concluded that in the present case, the author’s preventive detention was sufficiently distinct from a punitive sentence because opportunities were being provided to him to access psychological and other care aimed at his rehabilitation and release and that there were compelling reasons “arising from the gravity of the crimes committed and the likelihood of the detainee’s committing similar crimes in the future” that justified his ongoing preventive detention. Nonetheless, the Committee must make its own assessment, based on its jurisprudence and relevant subsequent developments in the case since the Working Group’s assessment, as to whether the conditions, nature and length of the author’s preventive detention were in line with the requirements of reasonableness, necessity, proportionality and continued justification and independent review that are contained in its general comment No. 35 (2014).

8.5The Committee notes the author’s argument under article 9 of the Covenant that after serving his mandatory period of non-eligibility for parole, he was arbitrarily detained because there was no fresh evidence against him; he was not convicted of any additional offences that could justify his continued preventive detention; and his punitive conditions of detention did not change. The Committee further notes the State party’s explanation that there was no need of any conviction, as the sentence of preventive detention was imposed lawfully on the author following his conviction in May 2004 for five offences, including rape and sexual violation of a minor, that all sentences were administered according to the purpose of the Corrections Act 2004 and offenders sentenced to preventive detention are determined by security classification. The Committee also notes that the author was offered various forms of counselling and psychological care under a drug treatment unit programme, which started in January 2013 before the author became eligible for parole. The Committee further notes the information provided by the State party, according to which the author had to abandon the treatment in March 2014 as he recognized that his behaviour and health were a barrier to him engaging in the programme (see para. 4.2 above). The Committee also notes that the author became eligible for parole on 21 April 2014 and that the first Parole Board hearing was held on 30 April 2014 (see para. 4.3 above); that the Board held further hearings on 21 April 2015 (see para. 4.4 above) and on 30 June 2016 (see para. 4.5 above) and concluded, after a risk assessment, that the author, as a violent sexual offender, still posed a very high risk; and that the Board allowed the transfer of the author to the low-security unit at Christchurch Prison on 17 August 2017 (see para. 4.6 above). The Committee also notes that the author was later released on parole on 1 September 2020, having completed the high-risk personality programme and the drug treatment unit programme by 2018, and graduated from the adult sex offender treatment programme in May 2019. The Committee therefore considers that the State party has sufficiently demonstrated that the author’s conditions, nature and length of his detention, as well as the security risk he posed of sexually violent offending, were duly assessed, in line with the requirements of reasonableness, necessity, proportionality and continued justification contained in its general comment No. 35 (2014).

8.6The Committee recalls that article 9 of the Covenant requires that preventive detention conditions be distinct from the conditions of convicted prisoners serving punitive sentences and be aimed at the detainee’s rehabilitation and reintegration into society. In this regard, the Committee notes the State party’s position that the purposes of the detention remain the same. It also notes that, while the detention remains officially punitive, the author’s term of preventive detention has been sufficiently distinct from his terms of imprisonment during the punitive part of his sentence (prior to eligibility for parole) as it was aimed at his rehabilitation and reintegration into society, as required under articles 9 and 10 (3) of the Covenant. In light of the information before it, the Committee cannot conclude that the State party has not demonstrated that the author’s preventive detention was sufficiently distinct from the punitive sentence.

9.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it do not disclose a violation of articles 9 (1) and 10 (3) of the Covenant.

Annex I

Individual opinion by Committee member Gentian Zyberi (dissenting)

1.While agreeing with the Committee’s assessment concerning the rehabilitation efforts prior to the author first appearing before the parole Board on 30 April 2014, I think that the inadequate rehabilitation and reintegration process during his prolonged preventive detention lasting almost 6.5 years violated his rights under articles 9 (1) and 10 (3) of the Covenant.

2.While the Working Group on Arbitrary Detention concluded in late August 2016 that this was not a case of arbitrary detention, it must be noted that its decision was taken shortly after the non-parole period of the author’s sentence was completed. Essentially, the main issue before the Committee was whether the conditions, nature and protracted length of the author’s preventive detention between April 2014 and September 2020 were in line with the requirements of reasonableness, necessity, proportionality and continued justification and independent review that are contained in the Committee’s general comments No. 35 (2014) and No. 21 (1992). General comment No. 35 (2014) provides that: “An arrest or detention may be authorized by domestic law and nonetheless be arbitrary.” The Committee has emphasized that preventive detention following a punitive term of imprisonment must, in order to avoid arbitrariness, be justified by compelling reasons and regular periodic reviews by an independent body must be assured to determine the continued justification of the detention. States must only use such detention as a last resort and must exercise caution and provide appropriate guarantees in evaluating future dangers. Moreover, detention conditions must “be distinct from the treatment of convicted prisoners serving a punitive sentence and be aimed at the detainee’s rehabilitation and reintegration into society”.

3.As the length of preventive detention increases, the State party bears an increasingly heavy burden to justify continued detention and to show that the threat posed by the individual cannot be addressed by alternative measures. As a result, a level of risk that might reasonably justify a short-term preventive detention may not necessarily justify a longer period of preventive detention. The State party has failed to show that no other less restrictive means were available to achieve the aim of protecting the public from the author that would not require further extending his deprivation of liberty.

4.Article 9 of the Covenant requires that preventive detention conditions be distinct from the conditions of convicted prisoners serving punitive sentences and be aimed at the detainee’s rehabilitation and reintegration into society. The State party has taken the position that the purposes of the detention remain the same. However, the detention remains punitive, regardless of whether an individual is serving the fixed or preventive detention portion of his or her sentence. While the author has long been offered various forms of counselling and psychological care, it does not seem that his Maori ethnicity or personal circumstances were adequately considered in the efforts to ensure his rehabilitation and reintegration into society (see para. 3.9, footnote 22 and paras. 5.6–5.7 of the Committee’s Views). Notably, he became eligible for parole in April 2014, but was transferred to the self-care unit only in August 2017 and finally released on parole in September 2020. Based on the information available, the author’s term of preventive detention has not been sufficiently distinct from his term of imprisonment during the punitive part of his sentence (prior to eligibility for parole) and has not been aimed predominantly at his rehabilitation and reintegration into society as required under articles 9 (1) and 10 (3) of the Covenant.

5.Under these circumstances, the Committee should have found a violation of articles 9 (1) and 10 (3) of the Covenant.

Annex II

Individual opinion by Committee member Arif Bulkan (dissenting)

1.The Covenant imposes a continuing obligation in relation to all prisoners, namely that “reformation and social rehabilitation” shall comprise the “essential aim” of incarceration (art. 10 (3)). States parties are accordingly obliged to adopt “meaningful measures” for the reformation of all prisoners for the entire duration of their incarceration. This enlightened approach is even more of an imperative in cases of preventive detention based on a notion of predicted dangerousness, a concept which this Committee has acknowledged to be “inherently problematic”. Where the latter is imposed, States parties must provide the necessary assistance that would allow detainees to be released as soon as safely possible.

2.In the present case, a majority of the Committee accepts the response of the State party that the author was the beneficiary of an array of opportunities and services aimed at his rehabilitation (see paras 4.2–4.6 of the Committee’s Views). Closer scrutiny, however, reveals that “array” is somewhat of an exaggeration. It was only in January 2013, nine years into his sentence and just one year before he became eligible for parole, that the author was first enrolled in a drug treatment programme. The author did not complete that programme or another one he started shortly before his first parole hearing the following year, so the denial of parole was inevitable.

3.Thereafter, the author spent 6 years in preventive detention, bringing the cumulative period of incarceration to 16 years. Over this time, the author was afforded a grand total of two brief sojourns in rehabilitation shortly before his first hearing and then two or three more thereafter. In my view, these sporadic attempts at rehabilitation hardly constitute an “array” of opportunities. They do not meet the standard laid down in article 10.3 of the Covenant of being meaningful, timely or continuous during his imprisonment, far less the heightened obligation required where a person is in preventive detention.

4.Further, the Committee’s jurisprudence dictates that conditions in preventive detention must be distinct from those for convicted prisoners serving a punitive sentence and must be aimed at rehabilitation and reintegration. Incarceration is also a last resort, where rehabilitation cannot be achieved by less intrusive means. Here again, even though the State party admits that its legislation does not draw distinctions between punitive and non-punitive conditions in preventive detention, the majority of the Committee, acting on its own assessment and that of the Working Group, has concluded that while the author’s detention remained officially punitive, it was sufficiently distinct and was aimed at rehabilitation. This is yet another finding that I find difficult to accept. The information presented by both parties reveal that the author was in fact detained in the same conditions as those serving punitive parts of their sentence. Further, it would appear that the author did not receive any specialized treatment in the light of his horrific childhood and the systemic problems faced by those, like him, of Maori ethnicity.

5.Although the author does not cut a sympathetic figure, at the time of his conviction he was only 22 years old. Psychological reports available to the relevant authorities revealed a life of unimaginable torment. He was sexually abused as a child by several family members, who also initiated his addiction problems by giving him drugs to make him more compliant. Is it surprising that if a child is systematically drugged and abused that he will grow up to perpetrate acts of sexual violence? Or that he would self-sabotage when first exposed to therapy after nine years’ imprisonment? The author was failed by family, community and the State in his formative years, and when he turned out exactly as moulded, the response was to lock him away in preventive detention.

6.I have no doubt that the State party is well-meaning and offers rehabilitation opportunities to prisoners. However, given the author’s individual circumstances, I respectfully disagree that what was afforded to him was timely or adequate, or that the punitive nature of his incarceration was appropriately altered during the period of his preventive detention. For these reasons, I would find that he was the victim of a violation of articles 9 (1) and 10 (3) of the Covenant.