Counter-Terrorism: Request for Urgent Action from UN re Conditions of Unconvicted Remand Prisoners

On 3 August 2006, the Human Rights Law Resource Centre wrote to various UN Special Rapporteurs in relation to the situation of Mr Amer Haddara, Mr Shane Kent, Mr Izzydeen Attik, Mr Fadal Sayadi, Mr Abdullah Merhi, Mr Ahmed Raad, Mr Ezzit Raad, Mr Hany Taha, Mr Aimen Joud, Mr Shoue Hammoud, Mr Majed Raad, Mr Bassam Raad and Mr Abdul Nacer Benbrika (collectively, ‘the Detainees’). The Detainees have been held as unconvicted remand prisoners in the maximum security Acacia Unit of Barwon Prison in Victoria since November 2005 in the case of nine Detainees and since March 2006 in the case of the remaining three Detainees.

The HRLRC is gravely concerned that the type, length, conditions and effects of the Detainees’ detention amount to serious ongoing human rights violations, including in relation to:

  • the right to be free from cruel, inhuman or degrading treatment or punishment under art 7 of the International Covenant on Civil and Political Rights (‘ICCPR’);
  • the right to freedom from arbitrary detention under art 9 of the ICCPR;
  • the right of prisoners to be treated with dignity and respect under art 10(1) of the ICCPR;
  • the right to a fair trial, including the right to adequate time and facilities to prepare a defence, under art 14(3) of the ICCPR;
  • the right to freedom of religion under art 18(1) of the ICCPR; and
  • the right to the highest attainable standard of physical and mental health under art 12 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’).

Attached is our letter of complaint with further details about the conditions and effects and detention, together with their relevance to the human rights violations alleged.  The HRLRC asked the UN Special Rapporteurs to consider and investigate this complaint as a matter of urgency.

The matter was the subject of a Report by the Special Rapporteur on Freedom of Religion and Belief dated 8 March 2007.

The impact of the conditions of detention of the Melbourne 13 on their ability to prepare an adequate defence was also considered by the UN Special Rapporteur on the Independence of Lawyers and Judges in a report tabled before the UN Human Rights Council on 11 June 2007.

Most significantly, the detention of the Melbourne 13 was considered by the UN Working Group on Arbitrary Detention at its 48th Session in May 2007.  At that session, the Working Group adopted an ‘Opinion’ on the matter, which is summarised below.

The Working Group’s mandate constrained its consideration to whether the conditions of detention are of such severity and duration as to impede the right to the preparation of an adequate defence and a fair trail (paragraphs 2 and 22-3).  The Working Group concluded, at 29, that ‘the material before it does not disclose such a lack of observance of international norms relating to a fair trial which would confer on the detention an arbitrary character’.

Notwithstanding this conclusion, the Working Group expressed four significant concerns about the case.

First, the Working Group considered, at 23, that the ‘conditions of detention, as described by the source and not contested by the Government, are particularly severe, especially taking into account that they have been imposed upon persons who have not yet been declared guilty and who must, accordingly, be presumed innocent’.

Second, the Working Group expressed concern, at 24, that correspondence between the defendants and their lawyers are scanned by prison officers and that legal professional visits are videotaped.

Third, the Working Group stated at 27 that they ‘remain concerned that the law appears to make the detention under extraordinarily restrictive conditions the rule for any person charged with a terrorist offence, without sufficient room for consideration of the specific charges against the detainees and their individual circumstances or dangerousness’.

Fourth, the Working Group went on to say, at 27, that the submissions from both the Centre and the Government ‘suggest that the judges deciding on bail applications might not have sufficient discretion to consider these matters either, at least in the absence of “exceptional circumstances”’.

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