by: E.O. Akhidenor, E. Ainabe, R. Akhidenor, J.
Akhidenor, K. Akhidenor and W. Akhidenor [represented
victim: Michael Osaretin Akhimien
communication: 5 December 1996
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
on 17 November 1998,
Decision on admissibility
1. The authors
of the communication are Ms. Elizabeth Omoaluse Akhidenor, Mr. Ezekiel
Ainabe, Mr. Richard Akhidenor, Ms. Jenniffer Akhidenor, Ms. Kingsley
Akhidenor and Mr. William Akhidenor, citizens of Nigeria and surviving
relatives and dependants of Mr. Michael Osaretin Akhimien. The authors
claim that in connection with the death in detention of Mr. Akhimien
and the subsequent investigation into the causes of his death, Canada
has acted in violation of articles 2, 10, 11, 12, 13, 14 and 16 of
the Convention. The authors are represented by counsel.
as submitted by the authors
2.1 Mr. Akhimien
was arrested on 28 October 1995, after having filed an application
for asylum in Canada. He was held at the Canadian Immigration Detention
Centre of Niagara Falls until 30 October 1995 when he was transferred
to the Canadian Immigration Holding Centre Celebrity Inn in Mississauga,
Ontario. Mr. Akhimien remained at the Celebrity Inn until his death,
caused by pneumonia and/or untreated diabetes, on 17 December 1995.
to counsel, on 6 December 1995, Mr. Akhimien had complained to other
detainees at the Celebrity Inn that he was experiencing health problems,
including blurred vision. On the same date, Mr. Akhimien made a written
request to see the Celebrity Inn's medical doctor, listing his symptoms
as blurred vision and headaches. The following day, on 7 December
1995, Mr. Akhimien consulted with the medical doctor who specifically
ruled out diabetes as the cause of his failing health. No laboratory
tests were performed.
2.3 On 13
December 1995 he made a new request to see the doctor and asked for
a blood test. He added to his previously mentioned symptoms that he
was experiencing dizziness, loss of appetite, lack of strength, a
bitter taste in his mouth, lack of saliva and nausea.
2.4 On 13
December 1995, subsequent to his new request to see the medical doctor,
Mr. Akhimien was put in solitary confinement. Counsel states that
he was put in solitary confinement because he was perceived to be
a troublemaker, constantly complaining about living conditions in
the Celebrity Inn. He also states that Mr. Akhimien had argued with
a guard who had refused him water from the kitchen and that his thirst
was a symptom of diabetes. Counsel further states that the room where
Mr. Akhimien was held in confinement was located only two doors away
from the doctor's office and that the room was known to be very cold
in wintertime. Mr. Akhimien remained in solitary confinement until
2.5 On 14
December 1995, the doctor was at the Celebrity Inn, but did not examine
Mr. Akhimien. On 15 December 1995, Mr. Akhimien consulted with a nurse
who noted his complaints and advised him to consult with the doctor
on 18 December 1995. According to counsel, the following day Mr. Akhimien
requested medical assistance from the guards who ignored him, assuming
that he was faking his condition. On 17 December 1995, the guards
called the security supervisor of the Celebrity Inn as well as a nurse
to the room in which Mr. Akhimien was held. Counsel states that he
showed signs and symptoms associated with untreated diabetes. Mr.
Akhimien's health condition was thereafter monitored every 30 minutes
for several hours before an ambulance was eventually called. He was
pronounced dead on arrival at the hospital. The autopsy identified
the cause as either pneumonia or diabetic ketoacidosis arising from
to the Coroners Act of Ontario, a coroner's inquest was held between
7 May and 6 June 1996. The jury concluded that Mr. Akhimien's death
was caused by diabetic ketoacidosis and that he had died from natural
causes. On 5 June 1996 an application was filed by the Nigerian Canadian
Association for judicial review of the coroner's inquest, on the grounds
that the inquest had been conducted in a biased and discriminatory
manner. Counsel further submits that the family made attempts to file
a complaint before the Canadian Human Rights Commission, but that
the complaint could not be examined since the deceased had not been
lawfully residing in Canada. Counsel also submits that the available
domestic remedies do not comply with the requirement of the Convention
that a prompt and impartial investigation of any occurrence of torture
must be undertaken. The delays inherent in a normal Canadian litigation
process are not compatible with the State party's obligations under
further draws the attention of the Committee to the fact that on at
least two occasions, 30 November 1995 and 8 December 1995, Mr. Akhimien
had written to the Canadian immigration authorities to withdraw his
application for refugee status and requested to be released from detention.
claims that the treatment to which Mr. Akhimien was subjected while
in detention constitutes cruel, inhuman or degrading treatment and
that the State party has acted in violation of article 16 of the Convention.
It is argued that Mr. Akhimien's death was preventable, that the acts
and omissions of the employees of the immigration detention centre
were the cause of his death and that the Government of Canada has
the final responsibility for the management of detention centres and
therefore bears responsibility for the death of Mr. Akhimien.
3.2 It is
further stated that the conditions and rules prevailing in Canadian
immigration detention centres do not comply with the standards established
by the Convention, in particular by articles 10 and 11.
counsel claims that the failure of the State party to ensure a prompt
and impartial investigation of allegations of torture in connection
with the death of Mr. Akhimien, as well as the failure to ensure that
the family of the deceased received adequate compensation, constitute
violations of articles 12, 13 and 14 of the Convention.
4.1 The State
party recalls that pursuant to rule 107 of the rules of procedure
of the Committee, the author of the communication must justify his
acting on the victim's behalf. It maintains that it is unclear from
the submission who the counsel represents or whether counsel has a
mandate from Mr. Akhimien's family and dependants. The State party
submits that the Committee cannot examine this communication before
counsel produces a document indicating the persons who mandated him
to act on their behalf.
4.2 The State
party submits that the communication be considered inadmissible given
that the authors have not exhausted all effective, available domestic
remedies as prescribed in article 22, paragraph 5 (b), of the Convention.
The State party recalls that in the present case a coroner's inquest
was conducted into the death of Mr. Akhimien, pursuant to the Coroner's
Act of Ontario. It is further recalled that the authors of the communication
allege that the coroner's inquest was not conducted impartially and
objectively and that the rules of evidence were not respected during
the process. The State party submits that if any error was committed
during the inquest, as alleged by the authors of the communication,
a domestic remedy exists, in the form of a judicial review by a Canadian
court. The State party further submits that on 5 June 1996 the Nigerian
Canadian Association filed an application for judicial review before
the Ontario Divisional Court, seeking to quash certain rulings made
by the coroner during the inquest or, alternatively, to quash the
entire inquest proceedings. At the time of the State party's submission,
the application for judicial review was still pending. The State party
submits that domestic remedies have not been exhausted, either because
the authors are the parties in the pending application for judicial
review, or because the authors could have brought a similar application
before a domestic court.
4.3 In response
to the allegations of the authors that the available domestic remedies
do not comply with the requirement of the Convention that a prompt
and impartial investigation of any occurrence of torture be undertaken,
the State party draws the attention of the Committee to the fact that
the coroner's inquiry into the death of Mr. Akhimien was held within
five months after the death and that the allegation is therefore unfounded.
The State party further submits that the authors' arguments must be
disregarded since the authors do not substantiate or explain in what
manner the existing domestic remedies are unreasonably prolonged or
in what way the authors would be prejudiced.
4.4 The State
party also submits that its Criminal Code as amended prohibits acts
of torture committed by officials, such as peace officers, public
officers or persons acting at the instigation of, or with the consent
or acquiescence of such persons. Furthermore, the Criminal Code prohibits
such acts as assault, both with or without bodily harm, causing bodily
harm with intent to wound or to endanger life, and intimidation. The
authors of the communication could thus have asked that criminal charges
be brought against the individuals who allegedly inflicted an act
of torture on Mr. Akhimien, but no such action has been taken.
4.5 As to
the question of compensation, the State party further states that
the Crown Liability and Proceedings Act and the common law permit
persons to sue public officers and/or the Government. The Government
is responsible for any liability, compensation or damages assessed
on account of the improper and unreasonable acts of its employees.
The State party underlines that redress is available in the civil
courts in respect of acts amounting to the tort of negligence, assault
or battery. Such redress is available notwithstanding that the same
acts may constitute a criminal offence and whether the accused was
convicted or acquitted at trial.
4.6 The State
party recalls that on 24 September 1996 the authors initiated an action
before the Ontario Divisional Court to sue the Government, pursuant
to the common law tort of negligence, for wrongful death and for violations
of the Canadian Charter of Rights and Freedoms, section 12 of which
states that everyone has the right not to be subjected to any cruel
and unusual treatment or punishment. The case is still pending and
the State party maintains that the authors have not exhausted domestic
remedies in this respect.
to the State party, article 14 of the Convention does not require
a particular or specific legal qualification that an act constitutes
an "act of torture" but requires that the legal system allows for
compensation to be paid to the dependants of the victim. If the Government's
liability with respect to the death of Mr. Akhimien is established,
a fair and equitable compensation may be awarded to his dependants.
The State party submits that, consequently, provision has been made
in its domestic law for victims of torture to seek redress and fair
and adequate compensation. It is the submission of the State party
that the redress provided for in national law satisfies the requirements
of article 14 of the Convention.
can also be sought from the Criminal Injuries Compensation Board,
on the condition that criminal charges have been brought under the
Criminal Code and that this has resulted in the conviction of certain
individuals for having committed an act of torture. Compensation which
may be awarded includes expenses incurred as a result of the injury
or death, pecuniary loss, and compensation for pain and suffering.
An application to the Board does not prevent a person from recovering
damages by way of civil proceedings. The State party reiterates that
the authors have not brought any criminal charges under the Criminal
Code and that a redress before the Board is at present therefore not
the State party submits that the communication should be considered
inadmissible as the authors have not substantiated their allegations
against the Government. In particular, the State party states that
the authors have failed to establish that the alleged acts could be
characterized as "torture" as defined in article 1 of the Convention
or as "cruel, inhuman or degrading treatment or punishment" as defined
in article 16. The essence of the communication is that the medical
care at the immigration detention centre was inadequate. The communication
alleges that Mr. Akhimien did not receive or was denied adequate medical
care in that the medical staff did not diagnose that he had a diabetic
condition of which he was not aware. The State party submits that
the negligence alleged does not constitute torture or cruel, inhuman
or degrading treatment or punishment. Even though, in some cases,
omissions could be considered torture or inhuman treatment, what is
alleged is negligence in the provision of medical care to a person
already suffering from a disease unknown to him. The State party submits
that this cannot be considered an "act" of torture or cruel, inhuman
or degrading treatment or punishment within the meaning of the Convention
and that the Convention was not intended to nor does it apply to such
5.1 In his
reply to the State party's submission, counsel states that the purpose
of the exhaustion of domestic remedies rule is not to ensure that
domestic remedies are not superseded by an international authority,
but rather to give the national authority the opportunity to remedy
the wrong suffered by the victim. Further, the remedies must not only
be theoretically available, but there must also be a realistic chance
that the redress would be effective.
submits that subsection 31 (2) of the Coroners Act explicitly forbids
the inquest jury from making "any finding of legal responsibility"
or from expressing "any conclusion of law" regarding the circumstances
that are the subject of the inquest. Consequently, it is erroneous
to say that the coroner's inquest held into the circumstances of the
death of the victim in the present case obviates the necessity of
an independent review. Further, counsel submits that the authors were
not parties to the application for judicial review made by the Nigerian
Canadian Association to the Ontario Divisional Court. It should be
noted that the family and dependants of the deceased lacked the necessary
resources to pursue and bring to timely conclusion an application
for judicial review. If the authors would at present file for a judicial
review it would be dismissed for delay.
states that theoretically and practically, criminal prosecutions are
strictly matters between the State and the accused. The complainant
is not a party to such actions nor can the victim exercise any control
over the prosecution process. The possibility of filing a complaint
with the consequence that the culprits might be prosecuted and/or
convicted cannot be considered a remedy.
regard to domestic remedies for compensation, counsel confirms that
the authors have filed an application under the Crown Liability and
Proceedings Act and that the case is pending at present. However,
counsel adds that although the action is currently pending before
a Canadian court, the action has been stalled and the case has not
progressed since November 1996 due to circumstances not attributable
to the authors.
further submits that the State party's reference to the Criminal Injuries
Compensation Board as a domestic remedy is purely speculative, since
an application cannot be filed until after prosecution, trial and
conviction of the culprit.
explains that he submits the communication on behalf of the family
and the dependants of the deceased, in his capacity as their counsel.
It is incumbent upon counsel, in that capacity, to pursue all possible
institutional remedies, national and international, for the purpose
of redressing the wrongs, injuries and damage suffered by his clients.
Counsel refers to enclosed affidavits authorizing counsel to represent
the victim's family and dependants in national proceedings.
and proceedings before the Committee
considering any claim in a communication, the Committee against Torture
must decide whether or not it is admissible under article 22 of the
6.2 The Committee
notes that the State party challenges the admissibility of the communication
on the grounds that counsel has not justified acting on the victim's
behalf; that domestic remedies have not been exhausted; and that the
communication is not sufficiently substantiated to serve as a basis
for the Committee's examination. The Committee, however, considers
that the documentation before it shows that counsel is acting on behalf
of the family and dependants of Mr. Akhimien. It also considers that
the information before it is sufficient to establish a prima facie
case that the communication may raise an issue under the Convention.
to article 22, paragraph 5 (b), of the Convention, the Committee is
precluded from considering any communication unless it has been ascertained
that all available domestic remedies have been exhausted; this rule
does not, however, apply if it is established that the application
of domestic remedies has been or would be unreasonably prolonged or
would be unlikely to bring effective relief to the presumed victim.
In the case under consideration, the Committee notes the information
from counsel that due to the time elapsed, it is no longer possible
for the authors to file for judicial review of the coroner's inquest.
However, the Committee also notes that the authors have not filed
criminal charges under the Criminal Code and that an application for
compensation is currently pending before the Ontario Divisional Court.
The Committee has considered whether the compensation procedure has
been unduly prolonged or unlikely to bring effective relief and concluded,
in view of the information provided by the authors, that this is not
the case for the time being. Thus, the Committee finds that the requirements
under article 22, paragraph 5 (b), of the Convention have not been
7. The Committee
the communication as it stands is inadmissible;
this decision may be reviewed under rule 109 of the Committee's rules
of procedure upon receipt of a request by or on behalf of the authors
containing information to the effect that the reasons for inadmissibility
no longer apply;
this decision shall be communicated to the State party, the author
and his representative.
English, French, Russian and Spanish, the English text being the original