CRPD/C/22/D/17/2013 has been legally represented by experienced criminal counsel throughout the proceedings and has also had a guardian appointed on his behalf. The State party is not aware of any requests to support the author’s participation in the proceedings which were denied. 4.13 The State party agrees that detention on the basis of disability alone would be contrary to article 14, 11 but argues that that was not the case in relation to the author’s circumstances. Article 14 (1) (b) of the Convention is to be interpreted consistently with the well-established prohibition on arbitrary detention set out in international law, for example in article 9 (1) of the International Covenant on Civil and Political Rights. The test adopted by the Human Rights Committee as to whether detention is arbitrary is whether, in all the circumstances, the detention is appropriate, justifiable, reasonable, necessary and proportionate.12 4.14 At all times, the detention of the author has been lawful. It was authorized by the custodial supervision order issued by the Court, which was not arbitrary or discriminatory. The State party accepts that persons with cognitive impairments are more likely to have a custodial supervision order imposed on them than persons without cognitive impairments. However, even if indigenous persons were more likely than non-indigenous persons to have a custodial – rather than a non-custodial – supervision order imposed on them, that amounts to legitimate differential treatment for particular persons with disabilities because a custodial supervision order is only imposed if there is no other practicable alternative that will ensure the safety of either the supervised person or that of the rest of the community. 4.15 There is no blanket rule stating that detention for a particular duration will necessarily be considered arbitrary. The determining factor is not the length of the detention but, rather, whether the grounds for continuing detention are justifiable. The prohibition against arbitrary detention does not mean that persons with a disability, including persons with cognitive impairment, cannot be detained at all or cannot be made subject to indefinite custody orders. Detention of a person with a disability is not inconsistent with States’ obligations under the Convention, or other human rights treaties, where it is based on sound, objective justifications and supported by appropriate legal safeguards. The length of time the author would have served if convicted is but one factor to take into account in assessing whether his detention became arbitrary. 4.16 Taken alone, the detention of the author in a correctional centre does not amount to degrading treatment or punishment in relation to article 15. In principle, it is undesirable for persons who are not accused or convicted of criminal offences to be detained in correctional centres. However, there may be exceptional circumstances that warrant the detention in correctional centres of such persons – for example, if necessary on a temporary basis pending the availability of a place in a specialized facility. Moreover, the author was not detained in isolation from others. While he may have temporarily been held in isolation when he was exhibiting behaviour of particular concern or when he chose to withdraw, this was for short periods of time and was reasonable and proportionate in the circumstances. 4.17 The author has not referred to any evidence that suggests that the decline in his condition has been caused by an inadequacy in the care received while in custody. Medical experts have stated from the initial assessments that, unfortunately, due to the nature of his cognitive impairment, the author’s decline, both cognitively and physically, was “inevitable”.13 4.18 While in custody at Alice Springs Correctional Centre, the author was not separated at all times from convicted offenders, but his interaction with convicted offenders does not 11 12 13 The State party expresses disagreement with the Committee’s statement of September 2014 according to which article 14 prohibits the detention of persons on the grounds of disability, even where there are other reasons for their detention, including that they are dangerous to themselves or to others, and that it is contrary to article 14 to allow for the detention of persons with disabilities based on the perceived danger of persons to themselves or to others. See www.ohchr.org/EN/ NewsEvents/Pages/DisplayNews.aspx?NewsID=15183. A v. Australia (CCPR/C/59/D/560/1993), para. 9.2, and Van Alphen v. Netherlands (CCPR/C/39/D/305/1988), para. 5.8. The source refers to a report by a behavioural consultant from the Northern Territory Department of Health dated 19 June 2009. 7