UN Human Rights Committee Rules on Family Contact with Prisoners

Tornel v Spain, UN Doc CCPR/C/95/D/1473/2006 (24 April 2009) The UN Human Rights Committee has held that the rights of a prisoner's relatives to protection from arbitrary interference with their family life, protected under art 17 of the International Covenant on Civil and Political Rights, will be infringed if prison authorities adopt a 'passive attitude' to keeping them informed of significant changes in the prisoner's heath.

Facts

Diego Morales Tornel died in a Spanish prison in January 1994, having been continually incarcerated since 1984.  He was diagnosed with HIV in April 1989 and subsequently received treatment in prison between July and August 1991.  However, records suggested he received no further medical care, or HIV medication, until March 1993, when he was hospitalised due to a worsening condition and diagnosed with AIDS, tuberculosis, probable pneumonia and an intestinal infection.

He was returned to the prison's general population on in April 1993, but was hospitalised again the next month.  Following his second discharge, the Prison's Treatment Board applied to the Directorate General of Penal Institutions for his conditional release, but received no response.  In October 1993, the Prison's Treatment Board repeated its request for his conditional release, with the added observation that Tornel was likely to die soon.  The Directorate General refused this second request, but stated that a further application should be filed if Tornel's condition worsened significantly.

When his condition deteriorated, the prison failed to alert the Directorate General and did not inform his family.  Tornel was readmitted to hospital on 13 December 1993 and died on 1 January 1994, before his family could arrange a visit.

Tornel's family filed a petition complaining about his treatment.  This petition and several appeals were all unsuccessful.  His family then applied to the Constitutional Court alleging violations of his right to life, to be free from inhumane treatment, and to family life.  His family also argued that their right to family life had been affected. The Court rejected their application.  Having exhausted domestic remedies, his family submitted a communication to the Human Rights Committee in April 2006.

In their communication, Tornel's family alleged that Spain had violated:

• Tornel's right to life under art 6(1) of the ICCPR,
• their rights, as his family, to be free from inhumane treatment under art 7,
• both their rights, and Tornel's right, to protection from arbitrary interference with family life under art 17,
• their rights to justice under art 14, as the Constitutional Court had found they effectively did not hold the rights invoked in their Court argument.

Decision

Admissibility

The HRC found that the family's communication was admissible, although only in part.  The HRC ruled there was insufficient evidence to substantiate a claim that Tornel had been denied his right to protection from arbitrary interference with family life, and therefore this aspect of the communication was inadmissible.  However, in relation to the family's claim that Tornel's right to life had been violated, the HRC noted that its past jurisprudence and rules of procedure allow a deceased's relatives to make claims on the deceased's behalf.  Therefore this aspect of the claim was admissible.  The HRC also ruled admissible the family's claim of a breach of their right to family life and to be free from inhumane treatment.

Merits

The HRC did not uphold the claim that Tornel's right to life had been breached, as:

• he had already been diagnosed with a terminal illness, so there was no basis to support a causal relationship between his death and his continuing incarceration; and
• the HRC simply did not have enough evidence to find that Tornel's medical treatment was inadequate.

However, the HRC did rule that his relatives' rights to family life had been breached.  The prison's 'passive attitude' to informing them of Tornel's worsening condition 'deprived them of information which had a significant impact on their family life' and amounted to an arbitrary interference with their family, which Spain failed to demonstrate was 'reasonable or [otherwise] compatible' with the ICCPR.  The HRC noted that Spain was obliged under art 2 of the ICCPR to provide the family with an effective remedy, which would include appropriate compensation, and to ensure that similar violations do not occur in the future.

The HRC considered it unnecessary to determine whether there had been a breach of art 7 (right to be free of inhumane treatment) in respect of the same facts, and of art 14 given its ruling on the claim regarding the right to protection from arbitrary interference with family life.

Relevance to the Victorian Charter

The Victorian Charter of Human Rights and Responsibilities protects both the right to life (s 9) and the right to protection from arbitrary interference with family life (s 13) in similar terms to the ICCPR.  This decision is significant as it clearly establishes that prison operators must be proactive in informing a detainee's families of significant changes in the detainee's heath.  A 'passive attitude' in such cases may constitute an arbitrary interference with their relatives' rights to the protection of family life.

This decision also suggests that detainees would need to establish that concrete steps had been taken to maintain a semblance of a family life (for example through repeated attempts to be relocated closer to their families, or attempting to contact them when ill) in order to establish a valid claim that the prison authorities have failed to protect their family life from arbitrary interference.  In respect of a detainee's right to life, this decision indicates that the HRC will require a reasonable evidentiary standard to be made out before it is prepared to find that medical treatment while in detention was inadequate.

Sachini Mandawala, Human Rights Law Group, Mallesons Stephen Jaques