Flemington & Kensington Community Legal Centre
Corinna Horvath Decision
As part of our strategy to increase access to justice for victims of police misconduct in Australia, the Flemington Kensington Community Legal Centre has been acting for Corinna Horvath in a communication to the United Nations Human Rights Committee.
An extremely significant decision by the Committee was handed down on 22 April 2014. The UN decision is available in full here (pdf)
The Human Rights Committee's decision on Horvath v Australia obligates the Australian Government to ensure victims of police assault have a right to compensation and have their complaint about police abuse heard independently.
In a damning decision, the Human Rights Committee has found that remedying police violence requires Victoria to take steps it has shirked up to this date. The UN Committee found that Australia has breached Corinna Horvath’s human rights by failing to provide her with an adequate remedy after members of Victoria Police assaulted her by brutally and unnecessarily punching her in the face fracturing her nose and rendering her senseless, falsely imprisoning her and maliciously prosecuting her following from an incident that took place on 9 March 1996.
18 years after the assault on her, the UN has concluded that Ms Horvath has not been adequately compensated and that the disciplinary proceedings brought against the police involved in her assault failed to meet the requirements of an effective remedy under Article 2, paragraph 3 of the International Covenant on Civil and Political Rights.
What the Victorian Government needs to do
The UN’s decision requires that the State of Victoria amend its legislation to ensure that the State is liable to compensate the victims of police brutality. As a consequence, Victoria must ensure the Police Regulation Act 1958 and the new Police Act 2013 are amended so that the State is liable for the wrongdoing of on-duty police officers. In Queensland and NSW, the State is liable to pay damages awarded against police. I urge Victoria to enact this as model legislation. Transferring liability to the State would not encourage police to act irresponsibly, as the State can pursue individual officers through civil action, and also take criminal and disciplinary action against them. It should not be incumbent on victims of police misconduct to pursue officers who perpetrate violent acts against them.
Furthermore the UN decision requires that the State ensures that allegations of human rights abuses are investigated promptly, thoroughly and effectively through an independent and impartial body.
This decision makes it clear that internal investigations by Victoria Police do not reflect this international standard. The UN specifically found that by failing to call civilian witnesses to give evidence, by failing to give the victim access to the police disciplinary file, holding a private hearing and by failing to re-open disciplinary proceedings after a civil finding that Corinna Horvath had been brutally beaten, Victoria Police’s disciplinary process failed to provide an adequate remedy to Ms Horvath.
The State of Victoria must now compensate Corinna Horvath in line with the quantum awarded to Corinna by the Court of Appeal. It must also re-open the disciplinary proceedings against the police who abused her.
It is also clear that police investigating allegations of police brutality is also a breach of our human rights
The decision is also pertinent for the case of young Ethiopian Australian man Nassir Bare whose appeal is being heard this month in the Victorian Supreme Court.
Corinna Horvath was a young woman who was brutally assaulted by a group of police during a raid on her home in March 1996. Corinna was 21 years of age at the time of the unlawful police raid on her property, had her nose fractured during the incident and was hospitalised for five days.
She was later maliciously prosecuted. Despite taking her case all the way to the High Court of Australia, Corinna has still not received the compensation awarded to her by the County Court when it first heard the case in 2001.
In 2001 Judge Williams of the County Court described the event as “an outrageous display of police force in a private house…[involving] excessive and unnecessary violence wrought out of unmeritorious motives of ill-will and a desire to get even.”
Despite clear findings of fact in civil proceedings against all officers involved in the raid on Ms Horvath, no employment consequences flowed from the decision. The Chief Commissioner of Police and the State of Victoria could have and should now act immediately on the civil findings. The standard of proof in disciplinary and civil proceedings is the same. Failure to act leaves the police involved still employed and capable of acting similarly against Victorians.
No disciplinary proceedings ever resulted in punitive measures and the officers involved were subsequently promoted.
Ms Horvath was forced to settle for a paltry amount of compensation, as the state chose to hide behind narrow principles of vicarious liability, and key police officers filed for bankruptcy.
Furthermore not one of the police involved have been dismissed from Victoria Police, or prosecuted for assaulting her.
In 2007, Dyson Hore-Lacy SC, who had appeared at the original trial and in the subsequent High Court Appeal, recognised that Ms Horvath had exhausted all domestic remedies and could attempt to seek justice under the International Covernant of Civil and Political Rights to which Australia was a signitory. Hore Lacey initiated steps with her that would become the Communition to the United Nations Human Rights Committee. Flemington Kensington Community Legal Centre readily agreed to take the matter on when approached.
The Communition below was submitted on 19 August 2008, to the Human Rights Committee of the United Nations in Geneva, Switzerland, seeking compensation from the State and effective discipline of police officers who so shamefully abused her. It was submitted by the Flemington Kensington Community Legal Centre, with Dyson Hore-Lacy SC and Michael Stanton assisting.
The Australian Government submitted a response in March 2010.
After reviewing this the Legal Centre, with assistance of Mr David Brett, Dyson Hore-Lacy SC, Michael Stanton and Phoebe Knowles issued a comprehensive response to the defence in July 2010.
Corinna has waited six years for a response. The final decision by the Committee was handed down on 22 April 2014.
The International Covenant of Civil and Political Rights places the burden on the State to ensure that police do not abuse the rights of people, regardless of police intent when then act. It further requires the State to compensate victims where this has occurred. The Victorian government, unlike the compensation regimes in NSW and Qld, has not met this international obligation.
We wish to acknowledge the critical role Dyson Hore-Lacy SC, Mr David Brett, Michael Stanton and Tamar Hopkins have played in the entire process. We would not have the UN decision without their continuous work through out the many years this case has continued.
Corinna has shown great courage and commitment to justice in making this communication to the UN.
It is hoped that the impact of her bravery and tenacity will benefit all Victorians through generating real legislative reform that will ensure the safety and human rights of people in this State and throughout Australia.
Help get Corinna a Remedy
Remedy Australia is a supporter-based organisation with a mandate to get Australia to comply with UN decisions on human rights complaints, both past and future. Australia is obliged to remedy individual violations and ensure they never happen again.
Act on the Horvath case now: Write to the Attorney-General, George Brandis, and the Victorian Premier, Denis Napthine
Liberty Victoria 'Justice for Corinna Horvath is Long Overdue' Media Release (7 May, 2014)
Rachael Brown, 'Victoria Police bashing breaches international convention', The World Today (6 May 2014)
Victorian Equal Opportunity & Human Rights Commission, 'Media Statement on the UN Human Rights Committee findings on the police assault of Corinna Horvath in 1996', Media Release (6 May 2014)
Jane Lee, 'UN says Victoria should compensate victim of police beating', The Age (5 May 2014)
Louise Milligan, 'Justice for woman bashed by police 20 years ago', 7:30 (ABC-TV, 5 May 2014)
Louise Milligan, 'United Nations says Victoria breached International Covenant on Civil and Political Rights by not compensating police bashing victim', ABC News (5 May 2014)
'UN to hear of women’s brutal bashing', The Age, (August 31, 2008)
TJ Hickey is a 17 year old Indigenous youth who died following injuries sustained during a police operation in Redfern NSW on 14 February 2004. In a communication dated 14 February 2010 his mother, Gail Hickey seeks justice for TJ Hickey by applying to the UN Human Rights Committee for a declaration that TJ Hickey's right to life was violated because the investigation of his death was conducted by police from the NSW Police Force, the very police agency implicated in his death.
The Legal Centre is assisted by Emrys Nekvapil of Counsel in this communication.
The Australian Government has submitted a response.
Australia's response - April 2010
The Legal Centre, with the assistance of Emrys Nekvapil, issued a detailed reply to the Australian Government's response.
Reply to the Australian Government - July 2010
We are still waiting for a decsion on this communication.
Taking your case to the UN
The International Covernant on Civil and Political Rights contains a large number of rights that are relevent to issues of police misconduct.
Under the 1st Optional Protocol to this Covernant, you can make a Communication to the United Nations Human Rights Committee if your rights have been violated.
Before making a communication to the Committee, you need to "exhaust all domestic remedies". This means you will need to have attempted to have your rights vindicated through all the tiers of the Australian legal system first.
Australia does not meet all its obligations under the ICCPR and sometimes the only way to seek justice is through this international mechanism. It can take many years for a response and Australia has only provided remedies to 18% of the UN decsions it has recieved to date.
On 3 April 2009 the Human Rights Committee raised the following concerns about policing in Australia:
The Committee expresses concern at reports of excessive use of force by law enforcement officials against groups, such as indigenous people, racial minorities, persons with disabilities, as well as young people; and regrets that the investigations of allegations of police misconduct are carried out by the police itself. The Committee is concerned by reports of the excessive use of the electro-muscular disruption devices (EMDs) “TASERs” by police forces in certain Australian states and territories. (articles 6 and 7)
The State party should take firm measures to eradicate all forms of excessive use of force by law enforcement officials. It should in particular: a) establish a mechanism to carry out independent investigations of complaints concerning excessive use of force by law enforcement officials; b) initiate proceedings against alleged perpetrators; c) increase its efforts to provide training to law enforcement officers with regard to excessive use of force, as well as on the principle of proportionality when using force; d) ensure that restraint devices, including TASERs, are only used in situations where greater or lethal force would otherwise have been justified; e) bring its legislative provisions and policies for the use of force into line with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; and e) provide adequate reparation to the victims.