CRPD/C/24/D/36/2016
5.3
The author maintains that he has exhausted all available domestic remedies. He notes
that he appealed to the Mental Health Tribunal on 3 March, 3 April and 18 May 2016,
challenging his involuntary treatment order, and, additionally, submitted a habeas corpus
complaint before the Supreme Court of Victoria on 22 March 2016 to challenge his
involuntary treatment order. He also submitted a subsequent request for injunctive relief
before the Supreme Court of Victoria, on 26 April 2016, in order to challenge the forced
treatment by electroconvulsive therapy. He further claims that any additional attempt to
exhaust domestic remedies would be unreasonably prolonged or unlikely to bring effective
relief. He argues that an appeal before the Victorian Civil and Administrative Tribunal was
not sought as he claims that that Tribunal is an administrative body that “cannot rule on
matters of law or intrinsic procedural fairness”.
State party’s further submission
6.1
On 9 November 2016, the State party submitted further observations on the
admissibility of the complaint. It reiterates its submission that the communication should be
found to be inadmissible for failure to exhaust domestic remedies and failure to substantiate
the claims for purposes of admissibility.
6.2
The State party reiterates its argument that it was, and remains, open to the author to
lodge an appeal with the Victorian Civil and Administrative Tribunal and to lodge a
complaint with the Mental Health Complaints Commissioner relating to his treatment order.
It notes that the author appears to have made two applications to the Supreme Court of
Victoria on uncertain legal grounds, and argues that the correct avenue of appeal, described
in its initial observations on the admissibility of the complaint, remains open to the author. It
argues that the author has failed to substantiate the assertion that recourse to the Mental
Health Tribunal, the Victorian Civil and Administrative Tribunal or the Commissioner would
be unreasonably prolonged or ineffective.
B.
Committee’s consideration of admissibility
7.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of
procedure, whether the communication is admissible under the Optional Protocol.
7.2 The Committee has ascertained, as required under article 2 (c) of the Optional Protocol,
that the same matter has not already been examined by the Committee, and has not been and
is not being examined under another procedure of international investigation or settlement.
7.3
The Committee notes the State party’s submission that victim status has not been
established under the Optional Protocol on behalf of the author, as it has not been established
that the author authorized his father and his counsel to bring the complaint on his behalf
before the Committee. The Committee notes that the author subsequently confirmed, in a
statement signed by him on 31 July 2016, that he authorized his father and counsel to submit
the complaint on his behalf to the Committee. The Committee therefore considers that it is
not precluded under article 1 (1) of the Optional Protocol from considering the present
communication.
7.4
The Committee further notes the State party’s submission that the author’s complaint
should be declared inadmissible under article 2 (d) of the Optional Protocol for failure to
exhaust domestic remedies. It notes the State party’s argument that a number of domestic
remedies were available to the author with respect to his claims, including: (a) seeking redress
from the Mental Health Tribunal, with an application to that Tribunal for revocation of the
inpatient treatment order or the order for treatment by electroconvulsive therapy; (b)
appealing any decisions made by the Mental Health Tribunal relating to the imposition,
revocation or continuance of the inpatient treatment order or the order for electroconvulsive
therapy to the Victorian Civil and Administrative Tribunal for a merits review; (c) appealing
any decision by the Victorian Civil and Administrative Tribunal to the Supreme Court of
Victoria on a question of law under section 148 of the Victorian Civil and Administrative
Tribunal Act 1998, or seeking a Supreme Court injunction or writ of mandamus; and (d)
lodging a complaint with the Mental Health Complaints Commissioner relating to his claims.
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