In re Application for Enforcement of Human Rights, by Jerry Kui [2014] PGNC 132; N5734 (17 September 2014)

N5734

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

HRA NO 89 OF 2013

APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS
BY JERRY KUI

Madang: Cannings J
2014: 9, 15, 17 September

HUMAN RIGHTS – application for enforcement – application by prisoner for early release from custody on humanitarian and medical grounds – Constitution, Section 36, freedom from inhuman treatment – Constitution, Section 37(1), right to full protection of the law – Constitution, Section 37(17), right to be treated with humanity and with respect for the inherent dignity of the human person – whether conditions of detention breach human rights standards of Constitution.

The applicant, a prisoner, sought an order for release from custody on humanitarian and medical grounds. There was medical evidence that he was suffering from chronic arthritis, that this was likely to be a permanent condition, and that he had severe mobility problems. He commenced proceedings under Section 57 of the Constitution seeking enforcement of his human rights. This is the ruling on that application.

Held:

(1) The evidence of the applicant was accepted by the Court. The applicant has a very serious medical condition, and is permanently disabled.

(2) The conditions are not presently available at the Correctional Institution in which he is detained to provide a proper living environment. His presence in the confined living conditions at the Jail creates a significant health and hygiene risk to other detainees. He has served a substantial time in custody. A family is ready and willing to look after him.

(3) Detaining him in the current conditions of the Jail, given his medical condition, amounts to inhuman treatment and in effect amounts to an infringement of his right as a detainee to be treated with humanity and with respect for the inherent dignity of the human person.

(4) Order for early release granted.

Cases cited

No cases are cited in the judgment.

APPLICATION

This was an application by a detainee for enforcement of human rights.

Counsel

V Amoko, for the plaintiff

17th September, 2014

1. CANNINGS J: The applicant is a prisoner at Beon Jail serving a seven-year sentence for rape. His due date of release is 8 May 2015.

2. He applies for enforcement of his human rights, in particular:

• the right to freedom from inhuman treatment under Constitution, Section 36(1),
• the right to the full protection of the law under Constitution, Section 37(1), and
• the right to be treated with humanity and with respect for the inherent dignity of the human person under Constitution, Section 37(17).
  

3. Specifically he seeks an order for release from custody on humanitarian and medical grounds. He says that he is now disabled. He has presented medical reports by Dr V Atua and Dr J Kuzma of Modilon General Hospital who say that he is suffering from chronic arthritis and this is likely to be a permanent condition, which means that he has severe mobility problems. The applicant has also given evidence that at the jail he is unable to independently use the shower and toilet and life is very difficult for him.

4. The Court asked the Office of Community Based Corrections to inquire into the question of whether, if the applicant is released, there is a community that would be prepared to accept him and look after him and ensure that he gets into no further trouble. The Officer in Charge of the Madang Office, Mr S Banari, gave oral evidence on these issues: the applicant's relatives, the Solu family, of Ohu village in the Amele area, are prepared to take him in and look after him.

5. I uphold this application for the following reasons:

(1) The applicant, aged 59 years, has a very serious medical condition, and is permanently disabled.

(2) The conditions are not presently available at Beon Correctional Institution and the facilities are not adequate to provide a proper living environment for a prisoner of his age and physical condition.

(3) His presence in the confined living conditions at the Jail creates a significant health and hygiene risk to other detainees.

(4) He has served a substantial time in custody.

(5) A family is ready and willing to look after him.

(6) Detaining him in the current conditions of the Jail, given his age and medical condition, amounts to inhuman treatment and in effect amounts to an infringement of his right as a detainee to be treated with humanity and with respect for the inherent dignity of the human person.

6. I will order his early release from custody. He will be placed on probation for one year on these conditions:

1. must report to the Probation Office within 72 hours after release from custody;
   
2. must reside at Ohu village, Amele, with the Solu family, and nowhere else except with the written approval of the National Court;
   
3. must not go to the place of the offence, Mirkuk village, or approach the victim, except with the written approval of the National Court;
   
4. must not leave Madang Province without the written approval of the National Court;
   
5. must attend his Church every weekend for service and worship and assist the church in its community activities;
   
6. must report to the Probation Office at Madang on the first Monday of every second month;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Madang and appear before the National Court every six months after the date of release from custody;
   
10. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

ORDER

(1) The application for early release is granted, subject to the applicant being on probation, in accordance with conditions which shall be set out in writing, for a period of one year after the date of his release from custody.

(2) The Jail Commander, Beon Correctional Institution shall release the applicant from custody forthwith.

Ordered accordingly.
________________________________________________________
Public Solicitor: Lawyer for the Applicant