1 The Russian language text employs the term ‘содержания под стражей’ which literally means ‘holding someone under (armed) guard’. This has been a potential stumbling block in the post-Soviet countries many of whom have inherited the Soviet system of criminal justice. In fact, in the Republic of Kazakhstan, a disagreement arose between ministries as to whether places such as care homes and children’s homes could fall under the umbrella of Article 4 OP, the argument being that in such places nobody is being held under armed guard. See Human Rights Implementation Centre, ‘ “Deprivation of Liberty” as per Article 4 of OPCAT: The Scope’ (October 2011) 1–2 <https://www.bristol.ac.uk/media-library/sites/law/migrated/documents/deprivationofliberty.pdf> accessed 12 December 2017.
2 Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted by Costa Rica  UN Doc E/CN.4/1409.
3 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  UN Doc E/CN.4/1991/66.
4 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  UN Doc E/CN.4/1996/28.
5 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 eighth session  UN Doc E/CN.4/2000/58.
6 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  UN Doc E/CN.4/2001/67, Annex I.
8 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  UN Doc E/CN.4/2002/78.
9 For the first nine sessions of the Working Group cf above Arts 1–3 OP.
10 E/CN.4/2001/67 (n 6) paras 42ff.
11 E/CN.4/2002/78 (n 8) para 21.
12 E/CN.4/2002/78 (n 8) Annex I (Proposal by the Chairperson-Rapporteur).
13 E/CN.4/2002/78 (n 8) para 57.
15 CHR, ‘Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, Res 2002/33 of 22 April 2002. See above Art 1 OP, 2.2.
17 See Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) 212.
18 See Christoph Grabenwarter, European Convention on Human Rights: Commentary (Verlag CH Beck 2014) 65.
19 Guzzardi v Italy App no 7367/76 (ECtHR, 6 November 1980) para 93; Rantsev v Cyprus and Russia App no 25965/04 (ECtHR, 7 January 2010) para 314; Stanev v Bulgaria [GC] App no 36760/06 (ECtHR, 17 January 2012) para 115.
20 Khlaifia and Others v Italy [GC] App no 16483/12 (ECtHR, 15 December 2016) para 64 referring to Amuur v France App no 19776/92 (ECtHR, 25 June 1996) para 42; and Stanev v Bulgaria (n 19) para 115; Engel and others v the Netherlands (1976) Series A no 22, paras 58-59; Gillan and Quinton v the United Kingdom App no 4158/05 (ECtHR, 12 January 2010) para 56; Guzzardi v Italy (n 19) para 92; Medvedyev and Others v France [GC] App no 3394/03 (ECtHR, 29 March 2010) para 73; Creangă v Romania [GC] App no 29226/03 (ECtHR, 23 February 2012) para 91; Austin and Others v the United Kingdom [GC] App nos 39692/09, 40713/09, and 41008/09 (ECtHR, 15 March 2012) para 59.
21 Guzzardi v Italy (n 19) para 95.
23 Report of the Working Group on Arbitrary Detention: United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court  UN Doc A/HRC/30/37, para 9.
24 In respect of asylum claimants restricted, on arrival in airports, to particular zones or holding areas, the Commission considered that, since they were able to leave the airport by taking a plane elsewhere, they were not in fact deprived of their liberty. The Court in Amuur v France (n 20), however, found that the mere fact that an asylum seeker may leave the country does not exclude a deprivation of liberty, since this may be only a theoretical possibility if no other country is offering the protection which they seek or is prepared to take them in. Thus an asylum seeker held in restricted conditions for an extended period of time may claim to be deprived of liberty. Short periods while practical matters were arranged, eg, repatriation or granting of asylum, would only constitute a restriction of movement. Where applicants’ asylum claims were rejected within a few days, they retained their passports and were not under any supervision or surveillance, the Court found that they were not to be regarded as detained in the transit zone, citing Karen Reid, A Practitioner’s Guide to the European Convention on Human Rights (5th edn, Sweet & Maxwell 2015) 430.
25 HL v the United Kingdom App no 45508/99 (5 October 2004) para 90; also De Wilde, Ooms, and Versyp v Belgium App nos 2832/66, 2835/66 and 2899/66 (18 June 1971) paras 64–65; Stanev v Bulgaria (n 19) para 119; Storck v Germany App No 61603/00 (ECtHR, 16 June 2005).
26 In the case of a mentally incapacitated person kept in hospital as a ‘voluntary patient’, the ECtHR found a deprivation of liberty as the applicant was under continuous supervision and control and not free to leave; the Court did not consider it decisive that the applicant was compliant and never sought to leave- see Reid (n 244) referring to HL v the United Kingdom (n 25) paras 82–89. See also Storck v Germany (n 25) where even if initially compliant, the applicant showed her lack of consent by attempts to abscond.
27 Shtukaturov v Russia App no 44009/05 (ECtHR, 27 March 2008), paras 107–09; Stanev v Bulgaria (n 19); DD v Lithuania App no 13469/06 (ECtHR, 14 February 2012) para 150.
28 In the Stanev Case—unlike in the HM Case where the applicant was placed in a nursing home purely in her own interest and where, after her arrival there, she agreed to stay—domestic law attached a certain weight to an individual’s wishes in connection with his placement and the applicant appeared to be well aware of his situation. Moreover, he explicitly expressed his desire to leave the home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from guardianship. At no point had he, either expressly or tacitly, agreed to his placement in the home; in Grabenwarter (n 18) 67; ‘the Court noted that the applicant was required to live a long distance from his home, that he needed permission to leave, that on occasion he had been returned to the institution against his will, and that key aspects of his life were subject to the long-term control of the institution. The Court left open whether placements of persons under legal incapacity in care homes disclosed in general a deprivation of liberty for which the state was liable, emphasizing that in the particular case the guardianship and care arrangements had been state-imposed and organised and thus falling under its responsibility’; in Reid (n 24) 432 referring to Stanev v Bulgaria (n 19) paras 121–32.
31 CAT/C/57/4 (n 30), para 1. It may be noted that also the comparable provision for the CPT in Article 2 ECPT, that stays behind Article 5 OP by not explicitly referring to a ‘public or private custodial setting’, was interpreted in the Explanatory Report in the sense that ‘[v]isits may be carried out in private as well as public institutions’; in CPT, ‘European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment: Text of the Convention and Explanatory Report’, CPT/Inf/C (2002) 1, para 32.
32 CAT/C/57/4 (n 30) para 3.
35 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (adopted 26 November 1987) ETS 126 (ECPT) Art 2: ‘Each Party shall permit visits, in accordance with this Convention, to any place within its jurisdiction where persons are deprived of their liberty by a public authority.’
36 Explanatory Report (n 31), para 30.
38 CAT/C/50/2 (n 29) para 67; CCPR/C/GC/35 (n 22) para 5; for the Working Group on Arbitrary Detention, deprivation of liberty includes ‘placing individuals in temporary custody in protective detention or in international or transit zones in stations, ports and airports, house arrest, rehabilitation through labour, retention in recognized and non-recognized centres for non-nationals, including migrants regardless of their migration status, refugees and asylum seekers, and internally displaced persons, gathering centres, hospitals, psychiatric or other medical facilities or any other facilities where they remain under constant surveillance, given that may not only amount to restrictions to personal freedom of movement but also constitute the de facto deprivation of liberty. It also includes detention during armed conflicts and emergency situations, administrative detention for security reasons, and the detention of individuals considered civilian internees under international humanitarian law’: A/HRC/30/37 (n 23) para 9; see the ECHR on Institutions for psychiatric care and social services: De Wilde, Ooms, and Versyp v Belgium (n 25); Nielsen v Denmark App no 10929/84 (ECtHR, 28 November 1988); HM v Switzerland App no 39187/98 (ECtHR, 26 May 2002); HL v the United Kingdom (n 25); Storck v Germany (n 25); A and Others v Bulgaria App no 51776/08 (ECtHR, 29 November 2011); international zones in airports: Amuur v France (n 24); Shamsa v Poland App nos 45355/99 and 45357/99 (ECtHR 27 November 2003); Mogos v Romania App no 20420/02 (ECtHR, 13 October 2005); Mahdid and Haddar v Austria App no 74762/01 (ECtHR, 8 December 2005); Riad and Idiab v Belgium App nos 29787/03 and 29810/03 (ECtHR, 24 January 2008); interrogation in police stations: II v Bulgaria App no 44082/98 (ECtHR, 9 June 2005); Osypenko v Ukraine App no 4634/04 (ECtHR, 9 November 2010); Salayev v Azerbaijan App no 40900/05 (ECtHR, 9 November 2010); Farhad Aliyev v Azerbaijan App no 37138/06 (ECtHR, 9 November 2010); Creangă v Romania (n 20): Mancini v Italy App no 44955/98 (ECtHR, 2 August 2001); Lavents v Latvia App no 58442/00 (ECtHR, 28 November 2002); Nikolova v Bulgaria (No 2) App no 40896/98 (ECtHR, 30 September 2004); Dacosta Silva v Spain ECHR 2006-XIII; confinement in an ‘open prison’: Foka v Turkey App no 28940/95 (ECtHR, 24 June 2008) para 78; Gillan and Quinton v the United Kingdom (n 20) para 57; Shimovolos v Russia App no 30194/09 (ECtHR, 21 June 2011) para 50; Brega and Others v Moldova App no 61485/08 (ECtHR, 24 January 2012) para 43; Brega v Moldova App no 52100/08 (ECtHR, 20 April 2010) para 43; confinement during crowd control efforts’: Austin and Others v the United Kingdom (n 20).
39 CAT/OP/ECU/2 (n 30) para 51; SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of the Netherlands: Recommendations and Observations Addressed to the State Party’ (2016) UN Doc CAT/OP/NLD/1.
40 CAT/OP/ECU/2 (n 30) para 51.
41 ibid; CAT/OP/NLD/1 (n 39).
42 CAT/C/50/2 (n 29) para 67.
43 CAT/OP/ECU/2 (n 30) para 51; CAT/OP/NLD/1 (n 39).
44 Murray R and others, The Optional Protocol to the UN Convention against Torture (Oxford University Press 2011) 76.
45 SPT, ‘Report on the Visit to New Zealand’ (2014) UN Doc CAT/OP/NZL/1, para 16. It is worth noting that the Inter-American Commission’s Principles observe that the category of persons covered by the definition of deprivation of liberty ‘includes not only those deprived of their liberty because of crimes or infringements or non-compliance with the law, whether they are accused or convicted, but also those persons who are under the custody and supervision of certain institutions, such as: psychiatric hospitals and other establishments for persons with physical, mental, or sensory disabilities; institutions for children and the elderly; centres for migrants, refugees, asylum or refugee status seekers, stateless and undocumented persons; and any other similar institution the purpose of which is to deprive persons of their liberty’; Inter-American Commission on Human Rights, ‘Principles and Best Practices on the Protection of Persons Deprived of their Liberty in the Americas’ (approved by the Commission during its 131st regular period of sessions, March 3–14, 2008) General Provision.
46 CAT/C/50/2 (n 29) para 67.
47 Murray and others (n 44) 76.
48 SPT, ‘Report on the Visit to Italy’ (2016) UN Doc CAT/OP/ITA/1 paras 49 and 51(a) recommended that the State party ‘urgently ensure internal and external independent monitoring, including through the NPM, of the immigration facilities … to guarantee its actions are in compliance with international human rights law and standards, including the prevention of torture and ill-treatment’. The ‘hotspots’ intended to ensure that all migrants are duly ‘registered’ when entering the country, ie deprivation of liberty of individuals has the sole purpose of collecting biometric data, such as fingerprinting: ibid, para. 30.
49 ibid, referring to HRC, ‘Concluding Observations: Belgium’ (2004) UN Doc CCPR/CO/81/BEL para 17 (detention of migrants pending expulsion).
50 CCPR/C/GC/35 (n 22) para 30.
51 CAT/C/57/4 (n 30) para 3.
52 The Health and Disability Commissioner (n 33) 20.
53 CAT/OP/NLD/1 (n 39) para 42.
55 CAT/C/GC/2 (n 34) para 19; see also CCPR/C/GC/35 (n 22) para 5, referring to Delia Saldías de López v Uruguay, No 52/1979, in HRC, ‘Selected Decisions Under the Optional Protocol’ (1985) UN Doc CCPR/C/OP/1, 88, para 13.
56 The SPT noted in its mission report on Italy that it was deeply concerned at the absence of an independent monitoring mechanism to regularly oversee, among immigration facilities, transfers, disembarkation, and expulsion processes and recommended that the State party ‘urgently ensure internal and external independent monitoring, including through the NPM, of the immigration … processes’: CAT/OP/ITA/1 (n 48) paras 49 and 51(a).
57 See also Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT) Art 29.
58 Murray and others (n 44) 78 referring to Art 29 VCLT (n 577), citing as example Denmark having excluded the Faroe Islands when ratifying in 2004, but having removed this restriction in 2005 before the OPCAT had entered into force. New Zealand excluded Tokelau from OPCAT when ratifying in 2007. The Netherlands ratifies only for the European part of the Kingdom. See also CAT/OP/NLD/1 (n 39) para 40, with reference to CAT, ‘Concluding Observations on the Combined Fifth and Sixth Periodic Reports of the Netherlands’ (2013) UN Doc CAT/C/NLD/CO/5-6, para 28; CED, ‘Concluding Observations on the Report Submitted by the Netherlands under Article 29, Paragraph 1, of the Convention’ (2014) UN Doc CED/C/NLD/CO/1, paras 24–25.
62 VCLT (n 577) art 31(1).
64 CAT, ‘Conclusions and Recommendations of the Committee against Torture: United States of America’ (2006) UN Doc CAT/C/USA/CO/2, paras 14, 15, 20.
65 SPT, ‘Guidelines on National Preventive Mechanisms’ (2010) UN Doc CAT/OP/12/5, para 24. See also para 33: ‘The NPM should establish a work plan/programme which, over time, encompasses visits to all, or any, suspected, places of deprivation of liberty, as set out in Articles 4 and 29 of the Optional Protocol, which are within the jurisdiction of the State. For these purposes, the jurisdiction of the State extends to all those places over which it exercises effective control.’
66 As stated by the Parliamentary Assembly of the Council of Europe ‘the extent to which Contracting parties must secure the rights and freedoms of individuals outside their borders, is commensurate with the extent of their control’. Parliamentary Assembly, Areas where the European Convention on Human Rights cannot be implemented, Doc 9730, 11 March 2003, para 45.
67 See eg ICCPR, ‘General Comment No 31 on The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (2004) UN Doc CCPR/C/21/Rev.1/Add.13, para 10. See also Loizidou v Turkey (Preliminary Objections) (1995) Series A No 310, paras 62–64; Cyprus v Turkey App no 25781/94 (ECtHR 10 May 2001) para 77; and Bankovic and Others v Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey, and the United Kingdom App no 52207/99 (ECtHR, 12 December 2001) para 71.
68 Legal Consequences of th