Jump to Content Jump to Main Navigation
Oxford Law Citator
Sign up for alerts

Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part I General Principles, Art.4 Obligation to Allow Preventive Visits to All Places of Detention

Stephanie Krisper

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: 27 September 2023

Subject(s):
Torture — Detention — Treaties, interpretation

(p. 739) Article 4  Obligation to Allow Preventive Visits to All Places of Detention

  1. 1.  Each State Party shall allow visits, in accordance with the present Protocol, by the mechanisms referred to in articles 2 and 3 to any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence (hereinafter referred to as places of detention). These visits shall be undertaken with a view to strengthening, if necessary, the protection of these persons against torture and other cruel, inhuman or degrading treatment or punishment.

  2. 2.  For the purposes of the present Protocol, deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.

1.  Introduction

1  Article 4 is one of the key provisions of the OP, as it, first, establishes an unequivocal obligation of States parties to allow visits by both the SPT and the NPMs ‘to any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence’.

2  Second, it defines deprivation of liberty and places of detention—but not without controversy. The term ‘places of detention’ is noted by the provision as the generic term that all places falling within the scope of the Protocol will be referred to. This term is hence used in this Commentary for all places of deprivation of liberty that visiting bodies are allowed to visit according to Article 4 OP.1

(p. 740) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

3  Original Costa Rica Draft (6 March 1980)2

Article 1

  1. 1.  A State Party to the Convention that becomes a party to the present Protocol agrees to permit visits in accordance with the terms of the present Protocol to any place (hereinafter referred to as a place of detention) subject to the jurisdiction of a State Party where persons are held who have been deprived of their liberty for any reason, including persons under investigation by the law enforcement authorities, civil or military, persons in preventive, administrative or re-educative detention, persons who are being prosecuted or punished for any offence and persons in custody for medical reasons.

  2. 2.  A place of detention within the meaning of this Article shall not include any place which representatives or delegates of a Protecting Power or of the International Committee of the Red Cross are entitled to visit and do visit pursuant to the Geneva Conventions of 1949 and their additional protocols of 1977.

4  Revised Costa Rica Draft (15 January 1991)3

Article 1

  1. 1.  A State Party to the present Protocol agrees to permit visits, in accordance with this Protocol, to any place within its jurisdiction where persons deprived of their liberty by a public authority or at its instigation or with its consent or acquiescence are held or may be held.

  2. 2.  The object of the visits shall be to examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and form other cruel, inhuman or degrading treatment or punishment in accordance with international standards.

5  Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)4

Article 1

  1. 1.  A State Party to the present Protocol shall permit visits in accordance with this Protocol to any place in any territory under its jurisdiction where persons deprived of their liberty by a public authority or at its instigation or with its consent or acquiescence are held or may be held [provided that full respect is assured for the principles of non-intervention and the sovereignty of States].

  2. 2.  The object of the visits shall be to examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from [, and [to take] measures for the prevention of] torture and from other cruel, inhuman or degrading treatment or punishment in accordance with applicable international [standards], [instruments], [law].

(p. 741) 6  Text of the Articles which Constitute the Basis for Future Work (2 December 1999)5

Article 1

  1. 1.  The objective of this Protocol is to establish a preventive visiting mechanism to examine the treatment of persons [deprived of their liberty] [detained] with a view to recommending means for strengthening, if necessary, the protection of such persons from torture and other cruel, inhuman or degrading treatment or punishment [as defined under international law applicable to the State Party] [and relevant international standards].

  2. 2.  Each State Party agrees to permit visits, [in principle,] in accordance with this Protocol, to [any place] [places of detention] [on any territory] under its jurisdiction [and control] where persons (may, based on reliable information [as determined by a competent and independent judicial authority of the State Party concerned] be deprived or) are [deprived of their liberty] [detained] [including structures intended or used to house or transport such persons] by [or pursuant to an order of] a public authority [or at its instigation or with its consent or acquiescence].

  3. [3.  Nothing in this Protocol will be interpreted as allowing:

    1. (a)  Visits to any civil or military facility that the State considers related to strategic national interest; or

    2. (b)  Interference in the domestic affairs of Member States in a manner which exceeds the provisions of the present Protocol.]

7  Mexican Draft (13 February 2001)6

Article 1

Each State party to the present Protocol shall establish or maintain, at the national level, a visiting mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as the national mechanism), which shall carry out visits to places in any territory under its jurisdiction where persons may be or are deprived of their liberty pursuant to an order of a public authority or at its instigation or with its consent or acquiescence (hereinafter referred to as places of detention), with a view to strengthening, if necessary, the protection of such persons from torture and other cruel, inhuman or degrading treatment or punishment.

8  EU Draft (22 February 2001)7

Article 1 (new)

For the purpose of this Protocol:

  1. (a)  Deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will or by order of any judicial, administrative or other public authority;

  2. (b)  A mission includes the travel and all the activities carried out by the Sub-Committee in a State party’s territory;

  3. (p. 742) (c)  A visit means the inspection of a physical facility where persons are deprived of their liberty;

  4. (d)  The Sub-Committee shall be deemed to be represented by its delegation.

Article 3 (old 1 revised)

  1. 1.  The objective of this Protocol is to establish an international preventive visiting mechanism to examine the treatment of persons deprived of their liberty, with a view to recommending means for strengthening, if necessary, the protection of such persons from torture and other cruel, inhuman or degrading treatment or punishment.

  2. 2.  Each State Party agrees to permit missions by the Sub-Committee to its territory and visits to any place under its jurisdiction and control where persons are or may be deprived of their liberty.

9  US Draft (16 January 2002)8

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 Discussions9

10  During the ninth session of the Working Group from 12 to 23 February 2001, a general discussion was held on the scope of prevention under the OP.10 Some delegations were of the opinion that prevention should be considered in the context of the provisions of the CAT dealing specifically with prevention, for example Articles 10 and 11, and should not involve monitoring activities. At the international level, monitoring should remain in the competence of the Committee and the SRT. Many delegations, however, found that prevention activities should include visits to all places where persons were deprived of their liberty, such as prisons for men and women, police stations, psychiatric wards, detention centres for minors and immigrants, and places of detention under the control of the judicial authorities. Other delegations raised concerns about the implications of such a scope of authority for constitutional and other fundamental rights. Regarding visits to unofficial places of detention, some delegations considered that they should not be part of the preventive activities. The existence of such places constituted, per se, a violation of human rights that should be dealt with by the Committee and the SRT in the framework of their monitoring functions.

(p. 743) 11  During the tenth session of the Working Group from 14 to 25 January 2002, the delegation of Japan questioned the appropriateness of an international body with unlimited powers to inspect places of detention in the territory of States parties.11 The delegation of Egypt strongly opposed the idea of an international mechanism with unlimited authority to visit any detention facility within a State at any time, and indicated that such unlimited authority would encounter constitutional obstacles. The delegations of Cuba and Egypt also suggested that States should have the possibility of refusing access to places of detention for reasons linked to national security. The Chairperson, however, pointed out that the mandate of the Working Group was to establish a preventive system of regular visits to places of detention on a universal scale and that Article 20 CAT had a clear monitoring and sanctioning function, not a preventive one. It was generally felt that the work of the Committee should not be duplicated and that the new bodies established under the OP should have different and additional functions in the field of torture prevention.

12  The Chairperson-Rapporteur’s proposal in its Article 4 emphasized the general principles regarding visits.12 In the discussion, the delegation of the United States of America found that the proposal would create an international Subcommittee on Torture that would have virtually unrestricted authority to visit and inspect any place where persons were or might be detained in any State party to the OP. In its view, this was incompatible with the principle of accountability and the need for reasonable checks and balances on any grant of power.13 The US delegation referred to its alternative draft, submitted during the fifth meeting14 of the Working Group on 16 January 2002, which further elaborated ideas presented by it during previous sessions. This draft aimed to recognize the valuable role visiting mechanisms, such as the CPT, could play at the regional level. The delegation of Cuba found that this proposal was too vague regarding which places of detention could be subject to visitations.

13  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 29 votes to 10.15

3.  Issues of Interpretation

3.1  Deprivation of Liberty

14  Article 4(2) explicitly defines deprivation of liberty as ‘any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority’. This broad definition can also be found in other international standards.16

15  The meaning of deprivation of liberty has been subject of extensive discussions and interpretation by international human rights bodies in relation to the right to liberty in Articles 9 ICCPR and 5 ECHR. Liberty of person is understood to relate to ‘freedom of (p. 744) bodily movement in the narrowest sense’17 or ‘confinement to a certain limited space’.18 The notion of deprivation of liberty contains an objective element of a person’s physical confinement and a subjective element of lack of free consent.

16  Deprivation of liberty must be delimited from restriction of freedom of movement. According to the ECtHR the difference is ‘one of degree or intensity, not of nature or substance’.19 For the interpretation of deprivation of liberty, the concrete situation is the starting point and account to be taken ‘of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’.20 Factors to be assessed are ‘the existence of a possibility of leaving the restricted area, the degree of supervision and control over the person, his or her is isolation, [sic] and the availability of social contacts’.21

17  As to the subjective criterion, the Human Rights Committee stated in its General Comment No 35 that deprivation of personal liberty pursuant to Article 9 ICCPR is ‘without free consent’;22 so did the Working Group on Arbitrary Detention.23 The ECtHR has elaborated that the ability of the person concerned to leave the alleged place of detention must not be only a theoretical one.24 However, the ECtHR has cautioned putting too much focus on the subjective element, holding that

the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he [the applicant] may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.25

(p. 745) As to custodial settings or placement in hospital, it is for the ECtHR also not decisive if the applicant showed lack of consent, eg by attempts to abscond.26 However, while a lack of legal capacity does not necessarily lead to the conclusion the person concerned cannot understand and hence consent to the situation,27 a person may, in certain situations, validly replace the wish of a person with impaired mental faculties, ‘acting in the context of a protective measure’.28

3.2  Places of Detention

18  As to the interpretation of Article 4 OP, it is worth noting that the second sentence of Article 4(1) reads: ‘These visits shall be undertaken with a view to strengthening, if necessary, the protection of these persons against torture and other cruel, inhuman or degrading treatment or punishment.’ This sentence reflects the principle of prevention underlying the OP. Regarding the scope of Article 4 OP, the SPT noted that ‘the term “places of detention”, as found in article 4 of the Optional Protocol, should be given a broad interpretation’.29 In its Compilation of Advice, the SPT concretized that ‘[t]he preventive approach which underpins the OPCAT means that as expansive an interpretation as possible should be taken in order to maximise the preventive impact of the work of the NPM’.30

19  As Article 4(1) OP obliges States parties to also allow visits to any place where persons ‘may be deprived of their liberty’, a place falls within the scope of the SPT’s and NPM’s visiting mandate when the SPT or the NPM considers that a person might be deprived of his/her liberty. Therefore, it is only necessary that a place have the potential to de facto limit the right of personal liberty.

20  Article 4 OP explicitly refers to a ‘public or private custodial setting’. The relevant provisions in the two paragraphs of Article 4 seem, however, to contain certain (p. 746) contradictions and are in need of interpretation. Article 4(1) contains an explicit obligation of States parties to allow visits to any place under its jurisdiction and control where persons are or may be deprived of their liberty, ‘either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence’ while Article 4(2) omits reference to consent or acquiescence by the public authority. However, a systematic interpretation of both provisions, in accordance with the object and purpose of the treaty to provide a comprehensive monitoring of all places of detention, requires that they, as the SPT stated, ‘need to read consistently together and … place within the scope of the Optional Protocol any public or private custodial setting’.31 The SPT noted that an interpretation that is limited to ‘such traditional places of deprivation of liberty as prisons would be overly restrictive and, in the view of the Subcommittee, clearly contrary to the Optional Protocol’.

21  The SPT interpreted the application of the terms ‘consent’ and ‘acquiescence’ in Article 4(1) OP to mean that the scope of the OP includes

any place in which a person is deprived of liberty (in the sense of not being free to leave), or where it considers that a person might be being deprived of their liberty, if it relates to a situation in which the State either exercises, or might be expected to exercise a regulatory function.32

In other words, the conduct of regulating—or the fact that the State should be regulating—creates again the link between the public authority and the place of deprivation of liberty.33 This limits the scope of Article 4 OP regarding purely private places of detention to situations in which individuals are detained by private groups when State authorities are aware of it and fail to exercise due diligence to prevent such detention.34 For example, if the police are aware of the fact that private paramilitary groups are holding people in detention and do nothing in their power to prevent this, they become complicit by acquiescence and the SPT or relevant NPM must be granted access to these facilities. The same holds true for private hospitals or nursing homes, which hold persons against their will with the mere knowledge and consent of a public authority. In any case, the visiting bodies must be granted access to detention facilities which governments have outsourced to private companies.

22  Such a broad interpretation of the scope of Article 4 OP is in line with the CPT’s understanding of the scope of its mandate pursuant to Article 2 ECPT:35

Visits may be organised in all kinds of places where persons are deprived of their liberty, whatever the reasons may be. The Convention is therefore applicable, for example, to places where persons are held in custody, are imprisoned as a result of conviction for an offence, are held in (p. 747) administrative detention, or are interned for medical reasons or where minors are detained by a public authority. Detention by military authorities is also covered by the Convention.36

23  It may be noted that also the comparable provision for the CPT in Article 2 ECPT was interpreted in the Explanatory Report in the sense that

[v]isits may be carried out in private as well as public institutions. The criterion is whether the deprivation of liberty is the result of action by a public authority. Accordingly, the Committee may carry out visits only in relation to persons who are deprived of their liberty by a public authority, and not voluntary patients. However, in the latter case, it should be possible for the Committee to satisfy itself that this was indeed the wish of the patient concerned.37

24  While the term ‘places of detention’ is to be interpreted extensively and an exhaustive list cannot be made, it should include, inter alia:38

  • –  prisons

  • –  police stations

  • –  pre-trial detention centres

  • –  all detention centres under military jurisdiction39

  • –  psychiatric institutions40 and mental health centres including clandestine clinics that ‘treat’ homosexuality41

  • (p. 748) -  social care institutions42 and welfare homes43 including homes for elderly persons44 and facilities for the care of persons with dementia45

  • -  juvenile detention centres46

  • -  homes for the young, foster homes, institutions for children with disabilities, and other family residences47 institutions for educational supervision, for children who are using drugs or alcohol, as well as orphanages

  • -  migrant detention centres including at so-called ‘hotspots’—major places of entry48 and confinement to a restricted area of an airport49

25  In the State party to visit, country-specific types of detention as ‘witch camps’ or slum communities50 may be also places of detention to visit. It may, however, be noted that the SPT stated that ‘[i]n any situations, the NPM ought also to be mindful of the principle of proportionality when determining its priorities and the focus of its work.’51 This statement does not suggest a prioritization of traditional places over such that fall under Article 4 OP only because of due diligence obligations; it seems only to intend to clarify that just because a facility fits within the visiting mandate of OP, this does not mean that it should be a priority in its preventive monitoring framework.52

26  Also mobile places such as means of transport are also understood as places of detention. The SPT also noted that ‘the place-based nature of inspecting can miss system-wide problems which require an intersectional approach. It can also fail to monitor instances along the chain of custody, such as transfers and periods of detention immediately after apprehension, where torture and ill-treatment can take place.’53 The SPT recommended that

the State party ensure that all places of detention are included in NPM visits, in accordance with the SPT’s evaluation that all persons deprived of their liberty in a State party are covered by the OPCAT. This includes … periods of deprivation of liberty during apprehension, transfer and removal.54

(p. 749) Hence, in accordance with CAT General Comment No 2, the OP also covers police cars and other means by which individuals are transferred.55 Such deprivation of liberty may be particularly problematic in the context of immigration processes, eg during transfers, disembarkation, and expulsion, as the persons concerned are under high stress and in a very vulnerable situation.56

3.3  Meaning of ‘under jurisdiction and control’

27  Article 4 OP indisputably obliges States parties to allow visits to places of detention within their territory,57 including dependencies and overseas territories if the States parties do not limit the reach of the OPCAT at the time of ratification or accession.58 Any effort to exclude the application of the OP from airports, seaports, islands or border posts—possibly by declaring them ‘international zones’—would thus be an act of bad faith not permitted by the rules of international law.

28  Regarding extraterritorial obligations, a strict literal interpretation of the English version of Article 4 OP would come to the result that the place of detention must be under both the ‘jurisdiction and control’59 of the State party in order for the OPCAT to be applicable. The Spanish version reads ‘jurisdicción y control’, the Russian ‘под его юрисдикцией и контролем’‎, the Arabic ‘يخضــع لولايتها ولسيطرتها‎’ and the Chinese ‘管辖和控制下’‎. However, the French version of the text, which is equally authentic,60 is formulated ‘sous sa jurisdiction ou son contrôle’ (ie, ‘under jurisdiction or control’).61

29  This discrepancy is solved by a systematic interpretation in accordance with the ordinary meaning of the terms in the context and in the light of the object and purpose of the OP.62 As elaborated for the preamble of the OP,63 the implementation of the OPCAT is to be seen as an effective preventive measure that Articles 2(1) and 16(1) CAT oblige States parties to the CAT to undertake. In regards to the geographical scope of application of the obligation to prevent torture, the CAT Committee stated that the Convention (p. 750) applies at all times and in any territory under a Contracting State’s jurisdiction which is to be understood to ‘include all areas under the effective de facto control of the State party, by whichever military or civil authorities such control is exercised’ and ‘all persons under the effective control of its authorities, of whichever type, wherever located in the world’.64

30  In this sense, the SPT stated in its Guidelines for the definition of the OPCAT’s geographical scope of application:

The State should allow the NPM to visit all, and any suspected, places of deprivation of liberty, as set out in Articles 4 and 29 of the Optional Protocol, which are within its jurisdiction. For these purposes, the jurisdiction of the State extends to all those places over which it exercises effective control.65

31  As ‘effective control’ is a vague term, its boundaries are not clear-cut.66 It must be noted that the threshold for deciding whether or not effective control is executed is relatively high by the UN Human Rights Committee as well as the European Court of Human Rights. They have observed that a State has to exercise a degree of ‘effective control over an area’ or ‘overall effective control’67 over such a territory. Also the ICJ requires either territorial control or the exercise of sovereign rights in occupied territories.68

32  Therefore, only situations of effective territorial control are clear-cut. Such are cases in which an individual is detained on a military base or in premises over which the foreign State has control, eg ‘diplomatic and consular premises and prisons’.69 Hence, States parties exercising jurisdiction and control outside their own territories over places of detention, such as the Russian authorities in the Transnistrian region of Moldova or Georgian authorities in Abkhazia and Tskhinvali regions in Georgia, are under an obligation to allow visits of the UN Subcommittee and the respective NPMs.70 In this sense, a State party can also not evade its responsibility by detaining persons extraterritorially, (p. 751) eg asylum-seekers in extraterritorial processing centres or rejected asylum-seekers in ‘regional protection areas’ pending return to their countries of origin.71

33  The presented definition of scope means that a contrario the authorities have no obligation to provide access to places of detention which are under their jurisdiction, but not under their effective control. If parts of a State’s territory are occupied by another State, such as Nagorno Karabakh, which de jure is part of Azerbaijan, but is currently occupied by Armenia, or under the de facto control of insurgent groups, such as certain areas controlled by the Daesh in Syria or Iraq, or governed by de facto authorities, such as the territories of Abkhazia and Tskhinvali region in Georgia, the respective governments are not required to provide access to the places of detention in such territories. This does not, however, absolve the governments from their responsibility under international law.

34  It may be noted, however, that the SPT visited areas in the Ukraine in 201 which the Ukraine calls ‘uncontrolled territories’; it met with the de facto authorities in Donestk and attempted to visit places of detention under their effective control. As these authorities are not States Parties to the OPCAT, the legal basis for the SPT was that these areas were under the legal jurisdiction of the Ukraine, even though not under its control. Hence, the SPT has, in its practice, reflected the ‘jurisdiction or control’ approach.72

35  The SPT elaborated on the issue of ‘cross-border monitoring of persons in detention’ in such a situation where ‘a State party to the Optional Protocol (a sending State) enter into an arrangement under which those detained by that State are to be held in facilities located in a third State (a receiving State)’.73 The SPT was confronted with the issue in the case of places of detention that are under the jurisdiction and control of a State party, but are being leased by other States and accommodating persons detained by those States.74 It considered that the sending State should ensure that such an agreement also provides for its NPM to have the legal and practical capacity to visit those detainees in accordance with the provisions of the OP and the Subcommittee Guidelines.75 In addition, the NPM of the receiving State should also have the capacity to visit those in detention on the basis of such agreements, ‘as a natural consequence of its general right to visit all those deprived of their liberty on the basis of public authority and under the jurisdiction and control of the State party’.76 After the visits, both NPMs should be able to present their recommendations and ‘enter into a preventive dialogue with the authorities of both the sending and receiving State. The agreement entered into between the sending and receiving States should provide for that and should permit the variation of its terms in the light of the recommendations made’.77

(p. 752) 36  However, if a State Party sends a person to a detention facility in a non-State party, the possibility of its NPM to visit such detention facilities may depend on the bilateral or multilateral agreement underpinning the arrangement, as a non-State party has no obligations to cooperate with the OPCAT mechanisms. Whenever the result of such arrangement is that the SPT or the sending State’s NPM is inhibited from accessing a detention facility, such lack of access would bring the sending State into breach of its obligation to act in good faith, as such schemes undermine the object and purpose of the OPCAT.

37  As removal falls under the application of Article 4 OP, non-voluntary deportation processes are seen as being covered by the mandate of the SPT and NPMs even beyond the territory of the State party as long as the latter retains at least partially effective control of detainees, ‘for instance, when a deportation process is subject to the orders of an airline captain, who is also able to assert some authority over the transfer’.78 It is important that aircraft used for repatriation flights is registered in the removing country so that it remains under the jurisdiction of the removing state until touchdown (and handover). As it is on handover that much abuse actually occurs, the receiving state ought to be an OPCAT state with an NPM able to monitor the reception.

38  If the NPM is refused access to places of detention, as a result of a lack of information by the concerned authorities on the notion of ‘person deprived of liberty’ under the OP, the SPT finds it important that ‘an investigation for obstruction of public duties, of whatever figure exists in the country to address such a problematic, be carried out efficiently and effectively’.79

Stephanie Krisper

Footnotes:

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 [1980] 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 [1991] 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 [1995] 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 [1999] 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 [2001] UN Doc E/CN.4/2001/67, Annex I.

7  ibid, Annex II.

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 [2002] 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.

14  ibid.

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.

16  UNGA, ‘United Nations Rules for the Protection of Juveniles Deprived of their Liberty’ as revised by Res 45/113 of 14 December 1990 (Havana Rules) r 11b.

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 [2015] 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.

30  SPT, ‘Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2016) UN Doc CAT/C/57/4, Annex on ‘Compilation of advice provided by the Subcommittee in response to requests from national preventive mechanisms, para 2. See also SPT, ‘Report on the National Preventive Mechanism Advisory Visit to Ecuador’ (2015) UN Doc CAT/OP/ECU/2, para 51.

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.

33  The Health and Disability Commissioner, Residential Aged Care: Complaints to the Health and Disability Commissioner: 2010–2014 (Health and Disability Commissioner 2016) 20 <https://www.hdc.org.nz/media/2700/residential-aged-care-report.pdf> accessed 12 December 2017.

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.   

37  ibid, para 32.

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.

54  ibid, para 45.

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.

59  Art 4 OP.

60  See Art 37(1) OP.

61  See also University of Bristol, ‘The Optional Protocol to the UNCAT: Preventive Mechanisms and Standards: Conference Report, Report on the First Annual Conference on the Implementation of the Optional Protocol to the UN Convention Against Torture (OPCAT)’ (2007) 34 <http://www.bristol.ac.uk/media-library/sites/law/migrated/documents/apr2007conference.pdf> accessed 12 December 2018.

62  VCLT (n 577) art 31(1).

63  See Preamble OP.

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 the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para 112.

69  Murray and others (n 44) 79, referring to the UK House of Lords interpreting the reference to ‘within the jurisdiction’ of the State in Article 1 ECHR to cover detention facilities at a British military base in Iraq. Al-Skeini and Others (Respondents) v Secretary of State for Defence (Appellant), Al-Skeini and others (Appellants) v Secretary of State for Defence (Respondent) (Consolidated Appeals) [2007] UKHL 26.

70  See on extra-territoriality also Murray and others (n 44) 79–81. On the notion of ‘territory under its jurisdiction’ see also above Arts 2, 4.1.2;