McCallum v South Africa, UN Doc CCPR/C/100/D/1818/2008 (2 November 2010)
The Human Rights Committee has found that South Africa violated a prisoner's rights not to be tortured or treated in a cruel, inhuman or degrading manner and to be treated with humanity and respected when deprived of liberty. South Africa was also found to have violated its obligation to investigate and remedy the violation of those rights.
Bradley McCallum, the author, submitted a communication to the UN Human Rights Committee under the First Optional Protocol to the International Covenant on Civil and Political Rights. The author alleged that violent and degrading treatment inflicted upon him and other prisoners by prison warders, and the subsequent refusal to provide him with medical treatment and HIV testing, amounted to a breach of a number of rights under the ICCPR, including the right not to be subjected to torture or inhuman treatment (art 7) and the right to be treated with humanity and respect when deprived of liberty (art 10).
The author is a prisoner at St Albans Maximum Correctional Facility in Port Elizabeth, in the Province of Eastern Cape. On 15 July 2005, the author and other inmates in his cell were informed that a warder had been stabbed to death by another prisoner. On 17 July 2005, they were ordered to leave their cell, strip naked and lie on the floor with their noses in the anus of the inmate in front of them, forming a human chain. The prisoners were taunted, sprayed with water and beaten with batons, shock boards, broomsticks, pool cues and pickaxe handles. At some point one warder inserted a baton into the author's anus. Fear and shock caused the prisoners to defecate and urinate on themselves and others linked to them in the human chain. After the 17 July incident, the author was deprived of contact with his family and deprived of exercise for a month. He repeatedly requested access to medical treatment. He received some form of medical attention in September 2005, but the prison doctor did not continue to treat him because the doctor believed that he was not responsible for treatment of 'internal' injuries. During the incident, the author had been forced down in a way that dislocated his jaw and damaged his teeth. The author's teeth were eventually removed, which detrimentally affected his diet and his health and his request for a teeth prosthesis was ignored. Due to the very high incidence of HIV in South African jails, the author requested that he be tested for HIV because he feared that he may have contracted the virus through his contact with other inmates' bodily fluids. The author's pleas did not result in his being tested for HIV.
The author complained about the incident to prison authorities, to the Office of the Inspecting Judge and to the South African Police Service. No investigation of the matter by these authorities followed. The author brought proceedings in the Magistrate Court, but the State denied the author's allegations. The author withdrew this action and brought proceedings in the High Court, but the State relied on legislation that required proceedings to be brought against the State and its organs within six months of the alleged cause of action. The author argued that this provision would defeat his action in the High Court.
The Committee considered that the author's claim was admissible, because no other international investigation into the matter was being conducted and because the author had exhausted all available domestic remedies. Notably, South Africa made no response to the Committee's continued requests for input on the admissibility and merits of the matter.
The Human Rights Committee found that South Africa violated the author's rights under arts 7, 10 and 2(3) of the ICCPR.
South Africa breached art 7 of the ICCPR, which provides that '[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment' by:
- failing to investigate the author's claims of ill-treatment;
- holding the author incommunicado for one month after the 17 July incident; and
- not testing the author for HIV, which he feared that he had contracted on 17 July.
The Committee found that South Africa's failure to investigate the author's complaints constituted a breach of art 2(3) of the ICCPR, which requires state parties to investigate alleged rights violations, and remedy violations if they are found to have occurred.
The Committee also found that South Africa breached art 10 of the ICCPR, which provides that '[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person', due to the delay in prison authorities' response to the author's request for medical treatment. Consistent with its existing jurisprudence, the Committee found that persons deprived of their liberty must be treated in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners.
South Africa is obliged, under art 2(3)(a) of the ICCPR, to investigate claims such as those made in this case, prosecute those responsible, and provide a remedy to the victim. The Committee requested that South Africa provide, within 180 days, information about the measures taken to give effect to the Committee's views.
Relevance to the Victorian Charter
The Victorian Charter protects and promotes the right not to be subjected to torture or to treatment or punishment that is cruel, inhuman or degrading (s 10), and the right of persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person (s 22(1)). The language of these sections of the Charter is almost identical to that of arts 7 and 10 of the ICCPR. The Committee's effective incorporation of the United Nations Standard Minimum Rules for the Treatment of Prisoners into Article 10 of the ICCPR is consistent with the interpretation of s 22(1) of the Charter with reference to the Victorian rules that are based on the UN Standard Minimum Rules in Castles v Secretary to the Department of Justice  VSC 310, . South Africa's violations of the author's rights under the ICCPR provide extreme examples of violations of rights that the Charter seeks to protect.
Natasha McNamara is a Lawyer at Allens Arthur Robinson