21 The idea of an international body carrying out preventive visits to places of detention was already contained in the original Costa Rica Draft of 1980. The revised Costa Rica Draft of 1991 then proposed a Subcommittee on Prevention to be established by the Committee against Torture. However, already during the 1992 discussions in the Working Group, concern was raised about a too close relationship between both bodies and an ‘indirect’ election of the SPT by the CAT Committee.19 Consequently, in 1993, the words ‘The Committee against Torture shall establish’ were replaced by the phrase ‘There shall be established’. In fact, the delegations which had concerns about a close relationship between both bodies prevailed, and the SPT, according to Articles 6 and 7, is not established and elected by Committee, but by the States parties to the Protocol. With ten members, its initial size was equal to that of the Committee. After the fiftieth ratification,20 the number of members increased to twenty-five, taking into account that the SPT’s workload would increase notably with a higher number of States parties.21 Consisting of twenty-five members, the SPT is currently the largest of all UN treaty bodies. The Protocol does not foresee a further increase of members.
22 In practice, the SPT works largely independently from the Committee, but in close cooperation with States parties. Although its missions to the territory of States parties do not require any prior consent, the SPT shall notify the States parties pursuant to Article 13(2) of its programme in order that they may make the necessary practical arrangements. The respective Government may oppose the inclusion of a specific expert in the mission22 and may even object to a visit to a particular place of detention on urgent and compelling grounds.23 But, in principle, the States parties are under an obligation to receive the SPT and to cooperate fully with it in the exercise of its functions and, above all, to grant it unrestricted access to all places of detention and their installations and facilities and relevant documents. It must further provide the SPT with the opportunity to conduct private interviews with detainees.24 After each visit, the SPT presents its report, including relevant recommendations and conclusions, directly to the respective Government, and may also publish this report upon request by the State party.25 The Committee against Torture only receives a public annual report by the SPT and may decide, under certain circumstances, to make a public statement on a particular matter or to publish a mission report of the SPT.26
23 According to Article 2(1) OP, the SPT shall carry out the ‘functions laid down in the present Protocol’. These are clearly defined in Part III on the mandate of the SPT.27 In addition to conducting preventive visits to places of detention in the territory of States parties and making recommendations to governments concerning the protection of detainees against torture and ill-treatment, the SPT shall also advise and assist States parties and their respective national preventive mechanisms and cooperate with the relevant UN organs and other relevant international and regional organizations.28
24 In carrying out these functions, the SPT shall ‘work within the framework of the Charter of the UN and shall be guided by the purposes and principles thereof’. These precautionary words were inserted in 1999 for the purpose of ensuring that the SPT will (p. 732) not abuse its mandate. The purposes and principles of the UN are laid down in Articles 1 and 2 of the UN Charter. Promoting and encouraging respect for human rights and for fundamental freedoms is one of the three key purposes of the UN29 and shall be achieved by means of international cooperation. The main principles, which the drafters of Article 2(2) OP probably had in mind, are the principles of sovereign equality, territorial integrity and non-intervention in matters which are essentially within the domestic jurisdiction of States, as laid down in Article 2(1), (4) and (7) of the UN Charter. However, these principles were developed for States and have only a limited value for guiding the work of the SPT. The drafters wished to express the principle that the SPT, in conducting missions to the territory of States parties, shall avoid any behaviour which might be interpreted as violating the sovereignty, equality, and territorial integrity of any State. In other words, the SPT shall act in a spirit of cooperation rather than confrontation and respect the customs, traditions, religious, and similar rules of the respective countries.
25 The SPT shall also be guided by ‘the norms of the United Nations concerning the treatment of people deprived of their liberty’. In addition to the right to personal liberty and security in Article 9 CCPR, the prohibition of torture and cruel, inhuman or degrading treatment in Article 7 CCPR, the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person in Article 10 CCPR,30 other rights of both Covenants are particularly relevant for detainees (such as the rights to privacy, freedom of religion and expression, equality and non-discrimination, the rights to food, water, shelter, clothing, healthcare, and education).
26 The term ‘norms’ also refers to the relevant non-binding declarations, principles and guidelines adopted by the UN for the protection of detainees:31
27 According to Article 2(3) OP, the SPT shall also be guided by various other principles. Most important is the principle of confidentiality. This means that all proceedings of the SPT, ie its meetings, visits and deliberations, shall be kept confidential. This corresponds to the principle of confidentiality of the Committee in the communication and inquiry procedures. Where the Committee publishes all conclusions and recommendations in the State reporting procedure under Article 19, all final decisions in the individual complaints procedure under Article 22 and at least a summary account of the results of its inquiry procedure under Article 20 CAT,51 the SPT, pursuant to Article 16(1) OP, ‘shall communicate its recommendations and observations confidentially to the State Party’. It may only publish a mission report upon explicit request of a State party or if the Government violates its duty of confidentiality.52 In addition, the CAT Committee may, if a State party refuses to cooperate or to take steps to improve the situation, decide to make a public statement on this matter or to publish the respective report of the SPT. Although the ECPT contains similar provisions on confidentiality,53 the general practice has emerged that most of the reports of the CPT are published in full upon request of the respective governments.54 The same holds true for the SPT, which encourages States parties to authorize the publication, as it ‘believes that publication of its visit reports reflects the spirit of transparency on which preventive visiting is based’.55 By the end of 2016, the SPT had transmitted a total of fifty-one visit reports to States parties and NPMs, whereof twenty-four had been made public.56
(p. 734) 28 The other principles mentioned in Article 2(3) OP are not elaborated on further. Impartiality means that the members of the SPT shall not be biased; guided by personal, economic, or political interests; and shall not become influenced by strong emotions or media interests. Objectivity is closely related to impartiality and means that the SPT shall report on its visits according to the facts as established in a professional, impartial, and non-biased manner. The SPT shall resist any pressure exerted by governments, NGOs, the media, and other interest groups. Finally, the principles of universality and non-selectivity signify that the monitoring of places of detention is based on a worldwide system and that the SPT, subject of course to the ratification of the OP by States, shall select the countries which it decides to visit by objective and non-selective criteria. This principle is further elaborated by Article 13(1) OP which requires the SPT to ‘establish, at first by lot, a programme of regular visits to the States Parties’. In addition to selecting countries by lot, the SPT shall also ensure that it visits countries in different world regions and with different legal and political systems on an equitable basis.57