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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part I General Principles, Art.2 Establishment of a UN Subcommittee on Prevention

Kerstin Buchinger

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
19 December 2019
ISBN:
9780198846178

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 03 June 2023

Subject(s):
Torture — Treaties, interpretation

(p. 726) Article 2  Establishment of a UN Subcommittee on Prevention

  1. 1.  A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture (hereinafter referred to as the Subcommittee on Prevention) shall be established and shall carry out the functions laid down in the present Protocol.

  2. 2.  The Subcommittee on Prevention shall carry out its work within the framework of the Charter of the United Nations and shall be guided by the purposes and principles thereof, as well as the norms of the United Nations concerning the treatment of people deprived of their liberty.

  3. 3.  Equally, the Subcommittee on Prevention shall be guided by the principles of confidentiality, impartiality, non-selectivity, universality and objectivity.

  4. 4.  The Subcommittee on Prevention and the States Parties shall cooperate in the implementation of the present Protocol.

1.  Introduction

1  As its name indicates, the Subcommittee on Prevention (SPT) is a subsidiary organ of the Committee against Torture (CAT Committee or Committee), which was established as the main monitoring body of the Convention in accordance with Article 17 CAT.1 The SPT is, however, largely independent from the CAT Committee. Its members are not elected by the CAT Committee, but by the States parties to the OP.2 It carries out its mandate, ie conducting visits to places of detention on the territory of States parties as well as advising and assisting States parties and their national preventive mechanisms,3 in close cooperation with the governments concerned and without any control of the Committee. The main link with the Committee is provided by Article 16: the SPT shall present a public annual report on its activities to the Committee, and the Committee may decide to make public statements or to publish country-specific reports of the SPT.

2  Since the SPT is empowered to carry out preventive missions to the territory of States parties without prior consent, which was considered by many States during the drafting process as undermining the UN principles of State sovereignty and territorial integrity, a number of precautionary provisions were inserted into the text of the OP. First, the SPT is (p. 727) required to cooperate with the States parties in carrying out country missions and visits to places of detention as well as other functions. Furthermore, the SPT shall be guided by the purposes, principles and relevant norms of the United Nations (UN) as well as by the principles of confidentiality, impartiality, non-selectivity, universality, and objectivity.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

3  Original Costa Rica Draft (6 March 1980)4

Article 3

  1. 6.  The States Parties to the present Protocol shall meet in Assembly once a year. They shall be convened by the Government of  . . .  or such other Government as may accept their request to do so.

  2. 7.  The Assembly shall elect the members of an International Committee responsible for the application of the present Protocol (hereinafter referred to as the Committee), shall adopt the budget for implementing the present Protocol, shall consider the general reports of the Committee and any other matters relating to the present Protocol and its application, and shall give general directions to the Committee.

4  Revised Costa Rica Draft (15 January 1991)5

Article 2

The Committee against Torture shall establish a Subcommittee for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Subcommittee); the Subcommittee shall be responsible for organizing missions to the States Parties to the present Protocol for the purposes stated in article 1.

5  Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)6

Article 2

There shall be established a Sub-Committee for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [of the Committee of Torture][which shall carry out the functions laid down in the present Protocol] (hereinafter referred to as the Sub-Committee); the Sub-Committee shall be responsible for organizing missions to the States Parties to the present Protocol for the purposes stated in article 1.

Article 3

In the application of this Protocol, the Sub-Committee and [the competent national authorities of] the State Party concerned shall cooperate with each other. The Sub-Committee shall be guided by principles of confidentiality and impartiality.

(p. 728) 6  Text of the Articles which Constitute the Outcome of the Second Reading (26 March 1999)7

Article 2

There shall be established a Subcommittee for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture which shall carry out the functions laid down in the present Protocol (hereinafter referred to as the Subcommittee); the Subcommittee shall be responsible for organizing missions to the States Parties to the present Protocol for the purposes stated in article 1.

Article 3

  1. 8.  In the application of this Protocol the Subcommittee and the State Party concerned shall cooperate with each other.

  2. 9.  The Subcommittee shall conduct its work within the framework of the Charter of the United Nations and be guided by the purposes and principles therein.

  3. 10.  The Subcommittee shall also be guided by the principles of confidentiality, impartiality, universality and objectivity.

7  Mexican Draft (13 February 2001)8

Article 2

There shall be established a Sub-Committee for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture which shall carry out the functions laid down in the present Protocol (hereinafter referred to as the Sub-Committee):

  1. 11.  The Sub-Committee shall be responsible for supporting and supervising the work carried out by national mechanisms in accordance with the provisions of the present Protocol;

  2. 12.  The Sub-Committee shall carry out its work within the framework of the Charter of the United Nations and shall be guided by the purposes and principles enunciated therein;

  3. 13.  The Sub-Committee shall also be guided by the principles of confidentiality, impartiality, universality and objectivity.

8  EU Draft (22 February 2001)9

Article 2 (old 2)

A Sub-Committee for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture shall be established which shall carry out the functions laid down in the present Protocol (hereinafter referred to as the Sub-Committee); the Sub-Committee shall be responsible for organizing missions and visits to the States parties to the present Protocol for the purposes stated in article 3.

The establishment of the Sub-Committee does not preclude the setting up as appropriate of a national mechanism to carry out unrestricted visits to places where persons are deprived of their liberty, as referred to in article 15.

(p. 729) 9  US Draft (16 January 2002)10

Article 1

  1. 1.  (a) There shall be established, under the Committee against Torture (hereinafter referred to as the Committee), a Subcommittee on the Prevention of Torture (hereinafter referred to as the Subcommittee on Prevention) which shall carry out the functions hereinafter provided.

    1. (b)  The Subcommittee shall consist of [five] experts of recognized competence in the field of human rights, who shall serve in their personal capacity and shall, under its direction, carry out the functions herein provided.

  2. 2.  Each State Party may, in furtherance of articles 2 and 16 of the Convention, establish, maintain or provide for national mechanisms to strengthen, if necessary, the protection of persons deprived of their liberty pursuant to an order of a public authority from torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as national mechanisms).

2.2  Analysis of Working Group Discussions

10  During the first session of the Working Group, held from 19 to 30 October 1992,11 Article 2 was discussed within the third basket of issues on 20 October 1992. The general trend of the discussion around Article 2 showed that the retention of an independent body responsible for the implementation of the Protocol was favoured. However, it was found that it should have some institutional connection with the Committee. Some delegations stated that the body should be independent from the Committee and should be invested with specific and sufficient powers. A specific proposal was made by the delegation of Chile,12 stating that the Committee should establish a list of experts to be entrusted with the task of carrying out the visits. This would, in Chile’s opinion, simplify matters and reduce delays while at the same time keeping down the costs for the new system. It was felt by some delegations, that the positive aspects of this proposal (streamlining of procedures, reducing financial costs) should be considered further.13 Another proposal was to establish a special institute with experts of the Committee as members.

11  Some delegations stated that the body should have a status that would inspire respect and credibility and considered that a reliance on the Committee would not be administratively effectual, especially given the Committee’s present size and workload. According to the view of some delegations, the principle of confidentiality could only be maintained by the installation of a SPT. Others stated that this would be undesirable for both financial and coordination reasons.

12  Concern was also raised with regard to an ‘indirect’ election of the SPT by the Committee.

13  In any case, and despite the fact that the trend of the discussion seemed to favour the idea of a separate body within an appropriate institutional link to the Committee, a need to clarify the relationship between the functions of the Committee and the SPT was clearly identified.

(p. 730) 14  In the second session of the Working Group from 25 October to 5 November 1993,14 the wording of Article 2 was further discussed. The group agreed to replace the opening words ‘The Committee against Torture shall establish’ by the words ‘There shall be established’, based on the thought that the text of the Protocol should follow that of the CAT where possible and appropriate.

15  Furthermore, there was a prevailing opinion among the delegations that the body to be established should be separate from the Committee and that the differences in the objectives of both treaty monitoring bodies justified such a separation. A reference was made to the quasi-judicial functions of the Committee, such as the consideration of communications. The main objective of the OP, however, was considered to be to promote the taking of preventive, as opposed to jurisdictional measures against torture.

16  Yet most delegations found that an institutional link between the two bodies should be foreseen and should both safeguard consistency with the already established system under the Convention and clarify the subordinate status of the new body to be established. Thus, a number of delegations wanted the words ‘of the Committee against Torture’ to be inserted after the word ‘Punishment’. One delegation suggested inserting the phrase ‘which shall carry out the functions laid down in the present Protocol’ thereafter. Some delegations, however, regarded the establishment of a separate body as excessive, for reasons of both coordination and cost.

17  During the fifth session from 14 to 25 October 1996,15 the Chairperson-Rapporteur called for comments on Article 2 as adopted as the outcome of the first reading. The delegations of Mexico, the Russian Federation and Cuba pointed out that the draft OP should clearly establish the link between the Committee and the SPT. They wanted to keep the phrases ‘of the Committee against Torture’ and ‘which shall carry out the functions laid down in the present Protocol’. The delegation of Japan, however, stated that the SPT should be independent of the Committee and proposed to delete the reference mentioned. Moreover, it proposed naming the new body the ‘Committee for the Prevention of Torture’.

18  The Drafting Group then decided to reflect the divergence of views in a footnote to be presented to the plenary meeting for adoption.

19  During the ninth session, a general discussion was held on the alternative draft submitted by the delegation of Mexico with the support of GRULAC, where among other things the composition and mandate of the international mechanism was considered.16

20  In the tenth and final Working Group session, from 14 to 25 January 2002,17 a debate was held on the proposal presented by the Chairperson-Rapporteur. At its fiftieth meeting on 22 April 2002, the Commission on Human Rights finally adopted the text of the OP submitted by the Chairperson-Rapporteur at the tenth session of the Working Group by twenty-nine votes to ten.18

(p. 731) 3.  Issues of Interpretation

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

  • •  Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules).32

  • •  Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.33

  • •  Code of Conduct for Law Enforcement Officials.34

  • •  Principles of Medical Ethics relevant to the Role of Health Personnel particularly Physicians, in the Protection of Prisoners and Detainees against Torture and other Cruel and Inhuman, Degrading Treatment or Punishment.35

  • •  Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules).36

  • •  Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power.37

  • •  Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.38

  • •  Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules).39

  • •  Basic Principles for the Treatment of Prisoners.40

  • (p. 733) •  Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines).41

  • •  Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules).42

  • •  Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.43

  • •  Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care.44

  • •  Guidelines for Action on Children in the Criminal Justice System (Vienna Guidelines).45

  • •  Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Istanbul Protocol).46

  • •  Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters.47

  • •  Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime.48

  • •  Rules for the Treatment of Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules).49

  • •  Guidelines against Intimidation or Reprisals (San José Guidelines).50

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

Kerstin Buchinger

Footnotes:

1  See above Art 17 CAT.

2  See below Arts 6 and 7 OP.

3  See below Art 11 OP.

4  Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted by Costa Rica [1980] UN Doc E/CN.4/1409.

5  Letter dated 15 January 1991 from the Permanent Representative of Costa Rica to the United Nations at Geneva addressed to the Under-Secretary-General for Human Rights (1991) UN Doc E/CN.4/1991/66.

6  Report of the Working Group on the Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its fourth session (1995) UN Doc E/CN.4/1996/28.   

7  Report of the working group on the draft optional protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its seventh session [1998] UN Doc E/CN.4/1999/59.

8  E/CN.4/2001/WG.11/CRP.1.

9  E/CN.4/2001/WG.11/CRP.2.

10  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its tenth session (2002) UN Doc E/CN.4/2002/78.

11  See Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1992) UN Doc E/CN.4/1993/28.

12  See E/CN.4/1992/WG.11/WP.1, paras 20–22.

13  See E/CN.4/1993/28 (n 11) para 51.

14  See Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1993) UN Doc E/CN.4/1994/25.   

15  See Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its fifth session (1996) UN Doc E/CN.4/1997/33.

16  See Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its ninth session (2001) UN Doc E/CN.4/2001/67, paras 32–37.

17  See E/CN.4/2002/78 (n 10).

18  See CHR Res 2002/33 of 22 April 2002. See also above Art 1 OP, 2.2.

19  See E/CN.4/1993/28 (n 11) para 53. See also above 2.2.

20  Switzerland was the fiftieth State ratifying the OP on 24 September 2009.

21  See below Art 5 OP.   

22  See Art 13(3) OP.

23  See Art 14(2) OP.

24  cf Arts 12 and 14(1) OP.

25  cf Art 16(1) and (2) OP.

26  cf Art 16(3) and (4) OP.

27  cf Arts 11 to 16 OP.

28  cf Art 11 OP.

29  On the interdependence of the three main UN purposes, security, development and human rights, see Kofi Annan, In Larger Freedom, A/59/2005, paras 12–17.

30  cf Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev edn, NP Engel 2005) 241ff

31  See also APT and IIHR, Optional Protocol to the United Nations Convention Against Torture: Implementation Manual (2nd rev edn, APT and IIHR 2010) 45.

32  GA Res 70/175 of 17 December 2015 (Revised UN Standard Minimum Rules for the Treatment of Prisoners).

33  GA Res 3452 (XXX) of 9 December 1975.

34  GA Res 34/169 of 17 December 1979.

35  GA Res 37/194 of 18 December 1982.

36  GA Res 40/33 of 29 November 1985.

37  GA Res 40/34 of 29 November 1985.

38  GA Res 43/173 of 9 December 1988.

39  GA Res 45/110 of 14 December 1990.

40  GA Res 45/111 of 14 December 1990.

41  GA Res 45/112 of 14 December 1990.

42  GA Res 45/113 of 14 December 1990.

43  Eighth UN Congress on the Prevention of Crime and Treatment of Offenders, 27 August to 7 September 1990.

44  GA Res 46/119 of 17 December 1991.

45  ECOSOC Res 1997/30 of 21 July 1997.

46  GA Res 55/89 of 4 December 2000.

47  ECOSOC Res 2002/12 of 24 July 2002.

48  ECOSOC Res 2005/20 of 22 July 2005.

49  GA Res 65/229 of 16 March 2011.

50  Guidelines against Intimidation or Reprisals (‘San Jose Guidelines’) (2015) UN Doc HRI/MC/2015/6.

51  cf above Arts 19, 20,