The applicants (B and N) reapplied for bail on the grounds that the conditions of their custody in the 'awaiting trial' block of Korovou Prison were inhumane and degrading. Both had made a previous bail application that was refused because they had escaped from police custody and were unlikely to surrender to the custody of the court.

They described the conditions in which they were held, both stating that prison conditions were in breach of the UDHR, ICCPR and the UNSMRTP. In visiting the facilities upon B and N's invitation, the court found the following: cell blocks had three occupants; there were three mattresses, three pillows and three blankets. The mattresses were damp and the blankets were used to cover the floor. There was one bucket latrine, which was emptied twice a day, one light bulb, one window, no water can, no mosquito nets and no medication for B and N's injuries. Dinner was consumed inside the cell. The Commissioner of Prisons said that on 8 October during the proceedings all remand prisoners had been moved to dormitories with better conditions.


Decision

The court refused bail to both B and N. In carefully weighing the arguments of both parties, it referred to Tyrer v U.K [1978] 2 EHRR 1, in which the European Court of Human Rights held that the reason for inhumane treatment is irrelevant because it breaches Article 3 of the ECHR. Similarly, in Seluck Asker v Turkey (12/1997/769/998-999), the right under 'Article 3 of the European Convention enshrines one of the most fundamental values of a democratic society. Even in the most difficult of circumstances … Article 3 makes no provision for exceptions and no derogation from it is permissible … even in the event of a public emergency'.

Reference was also made to the UNSMRTP (Part C) concerning untried prisoners, as B and N were in this case. The rules require that one prisoner is kept in one cell and that there are adequate sanitary facilities.

B and N argued that the conditions in which they were required to live in their cells contradicted the interests of the public. Both had a history of escaping police custody as well as a history of convictions. The offences were serious and there was a real risk of re-offending whilst out on bail. Considering these two issues alone, the court was inclined to refuse bail. However, the second step was to consider whether the conditions were so severely humiliating that they sapped the inherent dignity of the person. In the present case, both B and N were healthy and young, were no strangers to the criminal justice system and were both awaiting trial on multiple charges relating to violence.

The right of each man, woman and child in Fiji to be treated with dignity was an inalienable right. Breaches of s 25 of the CF could never be justified on the basis that Fiji was an underdeveloped country, or that the people of Fiji, because of their poor and simple backgrounds, were accustomed to being treated with inhumanity or disrespect. The prisoners of Korovou Prison, despite the crimes they might have committed against society, deserved to be confined in custody with no further degradation than was inherent in the act of confinement itself.

 Notwithstanding those facts, there were few cells that satisfied the UNSMRTP and s 25 of the CF. If B and N were to remain in the dormitories, conditions would not be as inhumane and degrading as in the 'awaiting trial' block. Therefore B and N were to be remanded in the dormitories where the conditions were not inhumane. Accordingly, bail was refused. However, if there were future complaints about the condition of the holding facilities, bail would be granted without hesitation.

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