Project 2016 Phoenix - RACE AGAINST STATE subversion of RULE

POLICE ACCOUNTABILITY PROJECT 2017

3 See, inter alia, Anne Peters, Corruption as a Violation of International Human Rights, Research Paper No. 2016-18 (Heidelberg, Max Planck Institute for Comparative Public Law and International Law, 2016); International Council on Human Rights Policy, Corruption and Human Rights: Making the Connection (Geneva, 2009); Martine Boersma and Hans Nelen, eds., Corruption and Human Rights: Interdisciplinary Perspectives (Intersentia, 2010); Martine Boersma, Corruption: A Violation of Human Rights and a Crime Under International Law? (Intersentia, 2012); Kolawole Olaniyan, Corruption and Human Rights Law in Africa (Hart, 2014); and Office of the United Nations High Commissioner for Human Rights (OHCHR) and Geneva Academy, Human Rights and Countering Corruption (2016).

2. Instrumentalizing torture or ill-treatment for “undue advantages”

31. The next closest interaction between corruption and torture or ill-treatment is marked by a direct and intended causal connection, namely where acts or threats of torture or ill-treatment are deliberately employed as a tool for obtaining an undue advantage, enforcing a corruption scheme or preventing accountability for corruption. This pattern of abuse is widespread in all regions of the world. It thrives in all contexts, systems or situational “niches” where officials or those acting on their behalf or with their consent or acquiescence are effectively free to exercise coercion arbitrarily and with near-total impunity, whether as a consequence of a complete breakdown of law and order (e.g. armed conflicts and natural disasters), of discriminatory policies and practices (e.g. marginalized communities and irregular migrants) or of corruption schemes exploiting situational vulnerabilities (e.g. prisoners and other institutionalized persons).

1. Systemic tolerance for unchecked power

49. One of the most fundamental root causes of corruption and torture or ill-treatment committed, facilitated or tolerated at all levels of State authority is the absence of effective checks and balances and the strict separation of powers between the executive, judicial and legislative branches of Government. While systemic governance failures are fairly obvious in States with autocratic regimes or weak democratic institutions, they nonetheless also permeate States with strong democratic institutions and formal guarantees of institutional independence, albeit less visibly.

52. Overall, the most fundamentally destructive effect of these systemic governance failures is the creeping establishment of systems, environments and situational “niches” where power can be abused with impunity, thus providing a fertile environment for the spread of corruption and, through the relevant patterns of interaction, also for the unchecked practice of torture and ill-treatment. Therefore, while measures targeting corruption and torture or ill-treatment at the level of individual officials, institutions and processes remain indispensable, the only realistic prospect for eradicating either phenomenon is to effectively address the underlying systemic governance failures conducive to both forms of abuse.

Predominant patterns of causal interaction

64. In terms of causal proximity, the Special Rapporteur proposes to distinguish the following predominant patterns of interaction between corruption and torture or ill-treatment:

(a) Demanding “undue advantages” that per se amount to torture or ill-treatment;

(b) Instrumentalizing torture or ill-treatment for “undue advantages”;

(c) Instrumentalizing “undue advantages” for torture or ill-treatment;

(d) Exploiting exposure to torture or ill-treatment for “undue advantages”;

(e) Torture or ill-treatment as a foreseeable “side effect” of corruption;

(f) Torture or ill-treatment and corruption as foreseeable “side effects” of other policies and practices.

Victoria’s Model Litigant Guidelines (MLGs) aim to regulate the

conduct of government parties in civil disputes in a manner that

goes beyond the ethical duties of ordinary litigants. Despite the

sheer number of disputes involving the Victorian government to which the regime applies, little academic attention has been given to Victoria’s MLGs. The article explores the nature and

extent of the regulatory force exerted by the MLGs by applying regulatory theory to the MLG regime. Particular attention is given to applying Ayers and Braithwaite’s theory of Responsive Regulation that includes situating the guidelines within their regulatory pyramid. The analysis finds that in the absence of a distinct regulator, the MLG regime is predominantly selfregulatory.

The responsiveness of the MLGs appears to be

restricted owing to an absence of public involvement in the MLG

regime. The article also highlights that likely challenges to the MLG regime as a mode of regulation include the nature of the regulatory context, the decentralisation of government services, the lack of publicly available information on the government’s adherence to the MLGs and the content of the MLGs themselves...

In Director of Consumer

Affairs Victoria v Scully99 the Director and his issued no pleadings or writ, but rather presented

a voluminous originating motion further elaborated via affidavit material. The

motion was set out in ‘a high level of generality’ and the facts and alleged breached of

law were not set out.100 The Director was found to have acted inconsistently with his obligations

under the CPA and the MLGs by:

not co-operating with the unrepresented parties; not bringing matters adverse to the

Director’s case to the attention of the Court; not acting so as to narrow the scope of

the issues in dispute; and not acting so as to ensure that the costs incurred are both

reasonable and proportionate to the amount in dispute. Further, the volume of material

presented by the Director to the Court (which appears to include much irrelevancy)

serves only to maximize delay in both the duration of the trial and the time for delivery

of judgment.101

Conduct amounting to Contempt

77. On the basis of the above observations and considerations on the substantive dimensions of the concept of “psychological torture”, and informed by broad stakeholder consultations, the Special Rapporteur, to the best of his knowledge and judgment, proposes the conclusions and recommendations set out below.

78. Prevalence. Psychological torture occurs in a wide variety of contexts, including ordinary criminal investigations, police detention, “stop-and-search” operations, intelligence gathering, medical, psychiatric and social care, immigration, administrative and coercive detention, as well as in social contexts such as domestic violence, mobbing, cyberbullying and political or discriminatory persecution.

79. General recommendations. Psychological torture constituting a subcategory to the generic concept of torture, the Special Rapporteur herewith reiterates the general recommendations of his mandate (E/CN.4/2003/68, para. 26) and emphasizes their full applicability, mutatis mutandis, to methods, techniques and circumstances amounting to “psychological torture”.

80. Non-coercive investigation. Given the practical importance of continuing to clarify the fault lines between permissible non-coercive investigative techniques and prohibited coercive interrogation, the Special Rapporteur reaffirms the conclusions and recommendations in the thematic report submitted by his predecessor (A/71/298) and invites States to actively support the ongoing process towards developing international guidelines on investigative interviewing and associated safeguards.

81. Istanbul Protocol. Personnel tasked with medical examinations, the determination of migration status or the judicial adjudication of potential cases of torture should be provided with function-specific training in the identification and documentation of the signs of torture and ill-treatment, in accordance with the updated Protocol.

82. Specific recommendations. More specifically with regard to the notion of “psychological torture”, the Special Rapporteur recommends that States adopt, incorporate and implement the following definitions, interpretations and understandings throughout their national normative, institutional and policy frameworks, including, in particular, their training and instruction of medical, judicial, administrative, military and law enforcement personnel.

83. Working definitions. For the purposes of human rights law, “psychological torture” should be interpreted to include all methods, techniques and circumstances which are intended or designed to purposefully inflict severe mental pain or suffering without using the conduit or effect of severe physical pain or suffering. Conversely, “physical torture” should be interpreted to include all methods, techniques and environments which are intended or designed to purposefully inflict severe physical pain or suffering, regardless of the parallel infliction of mental pain or suffering.

84. Constitutive elements: In the context of psychological torture, 

(a) “Mental suffering” refers primarily to subjectively experienced mental suffering but, in its absence, can also refer to objectively inflicted mental harm alone;

(b) “Severity” of mental pain or suffering depends on a wide range of factors that are endogenous and exogenous to the individual, all of which must be holistically evaluated on a case-by-case basis and in the light of the specific purpose pursued by the treatment or punishment in question;

(c) “Powerlessness” refers to the victim’s inability to escape or resist the infliction of mental pain or suffering, and can be achieved not only through physical custody but also, for example, through incapacitating medication, deprivation of legal capacity, serious and immediate threats and social contexts marked by coercive control, mobbing, cyberbullying and persecution;

(d) “Intentionality” is present where the perpetrator knew or should have known that, in the ordinary course of events, his or her acts or omissions would result in the infliction of severe mental pain or suffering, whether alone or in conjunction with other factors and circumstances;

(e) “Purposefulness” is present when mental pain or suffering is inflicted for purposes such as interrogation, punishment, intimidation and coercion of the victim or a third person, or with a discriminatory nexus, regardless of purportedly benevolent purposes such as “medical necessity”, “re-education”, “spiritual healing”, or “conversion therapy”;

(f) “Lawful sanctions” cannot include any sanctions or measures prohibited by relevant international instruments or national legislation, such as prolonged or indefinite solitary confinement, sensory manipulation, collective punishment, prohibition of family contacts, or detention for purposes of coercion, intimidation, or for reasons related to discrimination of any kind.

85. Predominant methods. In contrast to physical torture, which uses the body and its physiological needs as a conduit for affecting the victim’s mind and emotions, psychological torture does so by directly targeting one or several basic psychological needs, such as:

(a) Security (inducing fear, phobia and anxiety);

(b) Self-determination (domination and submission);

(c) Dignity and identity (humiliation, breach of privacy and sexual integrity);

(d) Environmental orientation (sensory manipulation);

(e) Social and emotional rapport (isolation, exclusion and emotional manipulation);

(f) Communal trust (institutional arbitrariness and persecution).

prosecutor means a solicitor who appears for the complainant or Crown in criminal proceedings.

regulatory authority means an entity identified in legal profession legislation which has

responsibility for regulating the activities of solicitors in that jurisdiction.

Fundamental duties of solicitors

3 Paramount duty to the court and the administration of justice

3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty. 

4 Other fundamental ethical duties

4.1 A solicitor must also—

4.1.1 act in the best interests of a client in any matter in which the solicitor

represents the client,

4.1.2 be honest and courteous in all dealings in the course of legal practice,

4.1.3 deliver legal services competently, diligently and as promptly as reasonably

possible,

4.1.4 avoid any compromise to their integrity and professional independence, and

4.1.5 comply with these Rules and the law.

5 Standard of conduct—dishonest or disreputable conduct

5.1 A solicitor must not engage in conduct, in the course of legal practice or otherwise,

which—

5.1.1 demonstrates that the solicitor is not a fit and proper person to practise law, or

5.1.2 is likely to a material degree to—

(i) be prejudicial to, or diminish the public confidence in, the administration of justice, or

(ii) bring the profession into disrepute.

18 Formality before the court

18.1 A solicitor must not, in the presence of any of the parties or solicitors, deal with a

court on terms of informal personal familiarity which may reasonably give the

appearance that the solicitor has special favour with the court.

19 Duty to the court

19.1 A solicitor must not deceive or knowingly or recklessly mislead the court.

19.2 A solicitor must take all necessary steps to correct any misleading statement made

by the solicitor to a court as soon as possible after the solicitor becomes aware that

the statement was misleading.

19.3 A solicitor will not have made a misleading statement to a court simply by failing to

correct an error in a statement made to the court by the opponent or any other

person.

22 Communication with opponents

22.1 A solicitor must not knowingly make a false or misleading statement to an opponent

in relation to the case (including its compromise).

29 Prosecutor’s duties

29.1 A prosecutor must fairly assist the court to arrive at the truth, must seek impartially

to have the whole of the relevant evidence placed intelligibly before the court, and

must seek to assist the court with adequate submissions of law to enable the law

properly to be applied to the facts.

29.2 A prosecutor must not press the prosecution’s case for a conviction beyond a full

and firm presentation of that case.

29.3 A prosecutor must not, by language or other conduct, seek to inflame or bias the

court against the accused.

29.4 A prosecutor must not argue any proposition of fact or law which the prosecutor

does not believe on reasonable grounds to be capable of contributing to a finding of

guilt and also to carry weight.

29.5 A prosecutor must disclose to the opponent as soon as practicable all material

(including the names of and means of finding prospective witnesses in connection with

such material) available to the prosecutor or of which the prosecutor becomes aware

which could constitute evidence relevant to the guilt or innocence of the accused

other than material subject to statutory immunity, unless the prosecutor believes on

reasonable grounds that such disclosure, or full disclosure, would seriously threaten

the integrity of the administration of justice in those proceedings or the safety of any

person.

29.6 A prosecutor who has decided not to disclose material to the opponent under Rule

29.5 must consider whether—

29.6.1 the charge against the accused to which such material is relevant should be

withdrawn, or

29.6.2 the accused should be faced only with a lesser charge to which such material

would not be so relevant.

29.7 A prosecutor must call as part of the prosecution’s case all witnesses—

29.7.1 whose testimony is admissible and necessary for the presentation of all of the

relevant circumstances,

29.7.2 whose testimony provides reasonable grounds for the prosecutor to believe

that it could provide admissible evidence relevant to any matter in issue,

UNLESS

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 [NSW]

(i) the opponent consents to the prosecutor not calling a particular witness,

(ii) the only matter with respect to which the particular witness can give

admissible evidence has been dealt with by an admission on behalf of the

accused,

(iii) the only matter with respect to which the particular witness can give

admissible evidence goes to establishing a particular point already adequately

established by another witness or other witnesses,

(iv) the prosecutor believes on reasonable grounds that the testimony of a

particular witness is plainly untruthful or is plainly unreliable, or

(v) the prosecutor, having the responsibility of ensuring that the prosecution case

is presented properly and presented with fairness to the accused, believes on

reasonable grounds that the interests of justice would be harmed if the witness

was called as part of the prosecution case,

provided that the prosecutor must inform the opponent as soon as practicable of

the identity of any witness whom the prosecutor intends not to call on any ground

within (ii), (iii), (iv) or (v) together with the grounds on which the prosecutor has

reached that decision, unless the interests of justice would be harmed if those

grounds were revealed to the opponent.

29.8 A prosecutor who has reasonable grounds to believe that certain material available

to the prosecution may have been unlawfully obtained must promptly—

29.8.1 inform the opponent if the prosecutor intends to use the material, and

29.8.2 make available to the opponent a copy of the material if it is in documentary

form.

29.9 A prosecutor must not confer with or interview any accused except in the presence

of the accused’s legal representative.

29.10 A prosecutor must not inform the court or an opponent that the prosecution has

evidence supporting an aspect of its case unless the prosecutor believes on

reasonable grounds that such evidence will be available from material already

available to the prosecutor.

29.11 A prosecutor who has informed the court of matters within Rule 29.10, and who has

later learnt that such evidence will not be available, must immediately inform the

opponent of that fact and must inform the court of it when next the case is before the

court.

29.12 A prosecutor—

29.12.1 must correct any error made by the opponent in address on sentence,