CAT/C/62/D/672/2015
2.2
On 11 April 2000, a visiting justice imposed 21 days of cell confinement on the
complainant for drug-related disciplinary offences — namely, a positive drug test result for
cannabinoids and two refusals to provide urine samples. The complainant notes that this
sanction was in violation of domestic legislation, as under section 33 (3) (g) of the Penal
Institutions Act 1954 the maximum period for which cell confinement can be imposed is 15
days. The complainant notes that he was confined to his cell for 23 hours a day during the
period he spent in solitary confinement. He was given only one hour a day to exercise and
take a shower. He had no access to radio or television, although he did have access to
reading material. He could not make telephone calls or receive visitors, and, in practice, his
ability to meet other people was severely restricted, as no other inmate was held in the same
part of the prison. He submits that he was particularly vulnerable at the time, as he was
suffering from chronic depression and drug addiction. He began speaking to himself in his
cell. He argues that he should not have been subjected to solitary confinement.
2.3
In October 2004, the complainant brought a civil suit before the New Zealand High
Court alleging that the sanction of cell confinement had violated his rights under the New
Zealand Bill of Rights Act 1990. He claimed that the cell confinement to which he had been
subjected exceeded the maximum sanction established by law and that it had amounted to a
violation of his rights under sections 9 (right not to be subjected to torture or cruel,
degrading or disproportionately severe treatment or punishment) and 23 (5) (the right of
persons deprived of liberty to be treated with humanity and with respect for the inherent
dignity of the person) of the Bill of Rights Act. He argued that he had not been provided
with adequate medical care during the time he spent in cell confinement, as he had not had
access to a doctor. In its judgment of 24 February 2012, the Court found that the visiting
justice did not have the power to impose 21 days of cell confinement on the complainant, as
section 33 (3) (g) of the Penal Institutions Act provides for a sanction of cell confinement
for a period of no more than 15 days. The Court also found that the reason the maximum
period was exceeded by six days was that the complainant had requested the justice to
impose a sanction of 21 days so that he could deal with his drug addiction before an
upcoming parole hearing. The Court further found that the prison administration had
breached regulation 56 (b) of the Penal Institutions Regulations, according to which the
administration was under an obligation to ensure that medical officers were promptly
notified when prisoners were in cell confinement. However, the Court did not find a breach
of sections 9 and 23 of the Bill of Rights Act, as the sanction had been imposed at the
complainant’s request and had not been intended to cause him to suffer. There was no
evidence that the sanction had in fact caused the complainant pain or suffering, and it had
not been degrading or humiliating. The Court found that all inmates at the prison had access
to doctors upon request and that the complainant had had such access, as demonstrated by
the fact that he had been taken to the hospital between 19 and 20 April 2000 to undergo a
liver biopsy. It noted that nurses checked detainees in cell confinement every day.
2.4
The complainant appealed the judgment to the Court of Appeal of New Zealand. On
7 November 2013, the Court found that his rights under section 23 (5) of the Bill of Rights
Act and section 33 (3) (g) of the Penal Institutions Act had been violated. The Court noted
that the complainant’s medical records suggested that, in 2000, he was suffering from
chronic depression, for which he was being treated with an antidepressant. 2 The Court
stated that the complainant’s request to the visiting justice to impose a 21-day period of cell
confinement was irrelevant and that it was for the justice to ensure not only that the
sanction did not exceed the statutory maximum but also that it could safely be imposed.
The Court found that what was known about the complainant’s addiction and mental
condition should have underlined the potentially harmful effects of an excessive period of
cell confinement on his mental well-being. The Court therefore found that the unlawful
sanction had entailed a failure to treat the complainant with humanity and respect for his
inherent dignity, in violation of his rights under section 23 (5) of the Bill of Rights Act. The
Court nonetheless found that there had not been a breach of the complainant’s rights under
section 9 of the Bill of Rights Act. The Court did not award the complainant damages. It
2
2
According to the judgment of the Court of Appeal, a note dated 25 February 2000 in the
complainant’s medical record under the heading “Diagnosis”, read: “Dysthymia. Previous diagnosis
of attention deficit hyperactivity disorder and chronic issues relating to past abuse”.