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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part III Mandate of the Subcommittee on Prevention, Art.11 Mandate of the Subcommittee

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 October 2023

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

(p. 803) Article 11  Mandate of the Subcommittee

The Subcommittee on Prevention shall:

  1. (a)  Visit the places referred to in article 4 and make recommendations to States Parties concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

  2. (b)  In regard to the national preventive mechanisms:

    1. (i)  Advise and assist States Parties, when necessary, in their establishment;

    2. (ii)  Maintain direct, and if necessary confidential, contact with the national preventive mechanisms and offer them training and technical assistance with a view to strengthening their capacities;

    3. (iii)  Advise and assist them in the evaluation of the needs and the means necessary to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

    4. (iv)  Make recommendations and observations to the States Parties with a view to strengthening the capacity and the mandate of the national preventive mechanisms for the prevention of torture and other cruel, inhuman or degrading treatment or punishment;

  3. (c)  Cooperate, for the prevention of torture in general, with the relevant United Nations organs and mechanisms as well as with the international, regional and national institutions or organizations working towards the strengthening of the protection of all persons against torture and other cruel, inhuman or degrading treatment or punishment.

1.  Introduction

1  Article 11 OP defines the core preventive mandate of the SPT as follows:

  • •  Conducting country missions and preventive visits to places of detention.

  • •  Advising and assisting States parties and NPMs.

  • (p. 804) •  Cooperating with relevant international, regional, and national organizations and institutions in the field of torture prevention.

2  While the first ‘operational’ function of the SPT, ie monitoring places of detention in order to issue recommendations with regard to an improvement of systems of deprivation of liberty, was introduced to the drafting process by the Costa Rica Draft and is based on the respective competence of the CPT, the second ‘advisory’ function was introduced by the Mexican Draft in 2001.1 The SPT’s advisory role in respect of NPMs is another key element of its mandate. In practice, the SPT first tended to make references to the establishment and/or effective functioning of NPMs in its visit reports published after regular country missions. In 2011, however, it decided to conduct special ‘NPM advisory visits’ in order to be able to fulfil its mandate under Article 11(b) OP in a more adequate manner.2 Although funds for implementation may be made available through the Special Fund set up in accordance with Article 26 OP, the question of funding with regard to the SPT’s advisory function has remained an issue of major concern. The task of cooperating with other relevant international, regional, and national bodies, particularly with the CPT and similar regional mechanisms, can be found in most drafts. It aims at encouraging cooperative efforts between a wide range of actors in the field of torture prevention in order to achieve the most effective outcomes as well as integrated and consistent preventive strategies.3 The competences of the SPT and the corresponding obligations of States parties in relation to country missions are further defined in Articles 12 to 16 OP, while the respective provisions for NPMs are set out in Articles 17 to 23 OP.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

3  Original Costa Rica Draft (6 March 1980)4

Article 8

  1. 1.  The Committee shall be responsible for arranging visits to places of detention subject to the jurisdiction of the States Parties to the present Convention.

  2. 2.  The Committee shall establish a programme of regular visits to each of the said States Parties and shall arrange such further visits as may appear necessary from time to time.

4  Revised Costa Rica Draft (15 January 1991)5

Article 8

  1. 1.  The Subcommittee shall establish a programme of regular missions to each of the State Parties. Apart from regular missions, it shall also undertake such other missions as appear to it to be required in the circumstances.

  2. (p. 805) 2.  The Subcommittee shall postpone any such mission of the State Party concerned has agreed to a visit to its territory by the Committee against Torture pursuant to Article 20 paragraph 3 of the Convention.

Article 9

  1. 1.  If, on the basis of a regional convention, a system of visits to places of detention similar to the one of the present Protocol is in force for a State Party, the Subcommittee shall only in exceptional cases, when required by important circumstances, send its own mission to such a State Party. It may, however, consult with the organs established under such regional conventions with a view to coordinating activities including the possibility of having one of its members participate in missions carried out under the regional conventions as an observer. Such an observer shall report to the Subcommittee. This report shall be strictly confidential and shall not be made public.

  2. 2.  The present Protocol does not affect the provisions of the Geneva Conventions of 12 August 1949 for the protection of victims of war and their Additional Protocols of 8 June 1977 by which the Protecting Powers and the International Committee of the Red Cross visit places of detention, or the right of any State Party to authorize the International Committee to visit places of detention in situations not covered by international humanitarian law.

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

Article 8

The Sub-Committee shall [undertake missions] [establish a programme of missions] to States Parties [based on the criteria capable of guaranteeing the principles of non-selectivity, impartiality, objectivity, transparency and universality] [based on criteria consistent with the principles set out in Article 3] [Apart from programmed missions, it shall also undertake other missions as appear to it to be appropriate].

[Those missions shall be] [mutually agreed between the Sub-Committee and the State Party concerned, in a spirit of cooperation] [undertaken by the express consent of the State Party concerned].

[Without prejudice to the provisions of Article 1], [the modalities for carrying out each mission shall be mutually agreed between the Sub-Committee and the State Party concerned, in a spirit of cooperation] [the Sub-Committee and the State Party concerned shall engage in consultation in order to determine the modalities of the mission].

[In preparation for such a mission], the Sub-Committee shall send a written notification to the Government of the State Party concerned of its intention to organize a mission [together with a detailed plan of the mission] [and after consultations with the State Party on the modalities of the mission]. [After such notification], the Sub-Committee may at any time visit any place referred to [in its detailed plan after a written agreement is given by the said Government] [in Article 1 paragraph 1].(p. 806)

Article 9

  1. 1.  The Sub-Committee [shall] [may] decide to postpone a mission to a State Party if the State Party concerned has agreed to a scheduled visit to its territory by the Committee against Torture, pursuant to Article 20 paragraph 3 of the Convention.

  2. 2.  The Sub-Committee, while respecting the principles set out in Article 3, is encouraged to cooperate with relevant United Nations organs and mechanisms as well as international, regional and national institutions or organizations working towards strengthening the protection of persons from torture and other cruel, inhuman or degrading treatment or punishment.

  3. 3.  If, on the basis of a regional Convention, a system of visits to places of detention similar to the one under the present Protocol is in force for a State Party, the Sub-Committee shall still be responsible for missions/visits to such a State Party under this Protocol assuring its universal application. However, the Sub-Committee and the bodies established under such regional conventions are encouraged to [cooperate] [consult] with a view to promote the objectives of this Protocol [and avoid duplication of work and missions/visits].

Such cooperation may not exempt the States Parties belonging also to such conventions from cooperating fully with the Sub-Committee, nor [exempt] [preclude] the Sub-Committee from carrying out missions/visits to the territories of those States in the fulfilment of its mandate.

[Each State Party belonging also to such regional conventions is encouraged to submit to the Sub-Committee, on a confidential basis, visit reports drawn up by the regional body in respect of that country and response of the State Party to it.]

  1. 4.  The provisions of the present Protocol do not affect the obligations of States Parties to the four Geneva Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977, or the possibility for any State Party to authorize the International Committee of the Red Cross to visit places of detention in situations not covered by international humanitarian law.

6  Text of the Articles which Constitute the Basis for Future Work after the Second Reading (2 December 1999)7

Article 8

  1. 1.  The Subcommittee:

    1. (a)  Shall establish, on the basis of a transparent and impartial procedure, a programme of regular [missions] [visits] to all States Parties [A reasonable frequency for the [missions] [visits] shall be decided by agreement with State(s) Party[ies]];

      [these regular [missions] [visits] include follow-up missions;

    2. (b)  Shall also undertake such other [missions] [visits] as appear to it to be required in the circumstances and based on reliable information, [determined as described in Article 1 of the Protocol] with a view to furthering the aims of this Protocol:

  2. (p. 807) 2.  (a) The Subcommittee shall send a written notification to the Government of the State Party concerned of its [intention] [request] to organize a [mission] [visit], [followed by] [including] a list of places to be visited and the composition of the delegation. [The Subcommittee may also visit other places as needed during its mission];

    1. [(b)  Those [missions] [visits] shall be conducted after the consent of the State concerned and shall be mutually agreed upon between the Subcommittee and the State Party in a spirit of cooperation];

    2. (c)  [Missions] [visits] shall be organized and carried out in accordance with the principles set out in Article 3 of the Protocol;

  3. 3.  [(a)] [Six months] Before a [mission] [visit] is carried out, the Subcommittee and the State Party concerned shall, [if either of them so requests,] enter into consultations with a view to agreeing [without delay on the practical arrangements] [on the modalities] of the [mission] [visit];

    1. [(b)  Such consultations on the practical arrangements for the [mission] [visit] may not include negotiations on the obligations of a State Party under Article 1 of the Protocol].

7  Mexican Draft (13 February 2001)8

Article 15

The Sub-Committee shall have as its mandate to:

  1. 1.  Advise and assist States Parties, when necessary, in the establishment of national mechanisms;

  2. 2.  Maintain close contact with national mechanisms and provide them with training and advice with a view to strengthening their capacities;

  3. 3.  Provide national mechanisms with assistance and advice in assessing needs and measures in order to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

  4. 4.  Supervise the functioning of national mechanisms;

  5. 5.  Make recommendations to national mechanisms and to States Parties on measures to strengthen, if necessary, the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

  6. 6.  Make recommendations and observations to States Parties with a view to strengthening the capacities and mandate of national mechanisms for the prevention of torture.

Article 18

  1. 1.  The Sub-Committee and the State Party concerned shall cooperate with each other in the implementation of this Protocol (former Article 3 paragraph 1).

  2. 2.  The Sub-Committee should cooperate in the prevention of torture with all bodies and mechanisms and with all international or regional mechanisms working to strengthen the protection of persons deprived of their liberty against torture and other forms of cruel, inhuman or degrading treatment or punishment.

(p. 808) 8  EU Draft (22 February 2001)9

Article 9 (old 8 revised)

  1. 1.  The Sub-Committee:

    1. (a)  Shall establish on the basis of a transparent procedure, a programme of regular missions to all States Parties. These missions may also include follow-up missions;

    2. (b)  Shall also undertake such visits or missions as appear to be required in the circumstances and based on information received by the Sub-Committee and assessed by it as credible, with a view to furthering the aims of this Protocol;

    3. (c)  Shall after a mission or a visit advise and assist the State Party in assessing the needs and appropriate measures for strengthening the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment;

    4. (d)  May make recommendations to the State Party on the mandate, the competence and the effective functioning as well as other relevant activities of an established national mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment, in accordance with Article 15;

    5. (e)  Shall transmit requests from a State Party for technical assistance and technical cooperation as well as facilitate the provision of such cooperation from the relevant United Nations bodies such as UNHCR, UNDP, ODCCP, UNICEF and UNIFEM.

  2. 2.  The Sub-Committee shall send a written notification to the Government of the State Party concerned of its intention to organize a mission.

  3. 3.  Before a mission is carried out, the Sub-Committee and the State Party concerned shall, if either of them so requests, enter into consultations with a view to agreeing without delay on the practical arrangements for the mission. Such consultations on the practical arrangements for the mission may not include negotiations on the obligations of a State Party under Articles 3 or 13.

9  US Draft (16 January 2002)10

Article 2

The Subcommittee on Prevention, under the direction of the Committee, shall:

  1. (a)  Assist members of the Committee with respect to the Committee’s functions under the Convention, including, in particular, the making of confidential inquiries in accordance with paragraphs 1–5 of Article 20, as well as with voluntary visits the Committee may propose to States Parties that may be made in agreement with them;

  2. (b)  Assist, upon request, States Parties in setting up national mechanisms;

  3. (c)  Respond to requests for technical advice designed to assist States Parties with the operation of national mechanisms, as well as with the effective implementation of their obligations under Articles 2 and 16 of the Convention;

  4. (d)  Serve as a resource for technical information and advice to promote safe, humane, cost-efficient and appropriately secure facilities for detention or imprisonment.

(p. 809) 2.2  Analysis of Working Group Discussions

10  During the first session of the Working Group, held from 19 to 30 October 1992, Article 8 was discussed within the fourth basket titled ‘Operation of the system’ and Article 9 was considered within the fifth basket of issues called ‘Relationships between the SPT and other institutions’.11

11  The general approach of participants who were in the process of considering Article 8 of the revised Costa Rica draft was to support the concept of a programme of regular missions of a preventive character to States parties, which was to be supplemented as required by the circumstances.12

12  With regard to Article 9, most participants in the debate considered that a balanced relationship between the SPT and other bodies, including regional bodies and the International Committee of the Red Cross, was a very important element in the credibility and the administration of the system of visits. In addition, numerous questions were raised about the approach taken by the present text to address the issue of relations between regional and universal systems.13

13  The Working Group held its second session from 25 October to 5 November 1993. During the discussions on Article 9, the need for appropriate measures of coordination in order to avoid duplication with other bodies and to enhance complementarity were considered as vital requirements of the OP. It was felt that the Protocol’s provisions should be universal in scope and not exclude any region, including areas where relevant regional agreements already existed.14

14  It was stated that the relationship between the SPT and other bodies, such as the Committee against Torture, regional bodies and the Special Rapporteur on Torture of the Commission on Human Rights, must be made clear. The need was also seen for a revision of the conditions for the establishment of cooperation with regional organizations, particularly with regional agreements. Moreover, it was proposed that a possible solution to the concern expressed above might be found in the principle of reciprocal cooperation between the bodies.15

15  The Working Group held its third session from 17 to 28 October 1994. At this session, the informal drafting group submitted the generally-accepted text of Article 9 to the plenary meeting of the Working Group. It was pointed out that paragraph 4 of that Article accommodated the balance in the relationship between the SPT and bodies established under other conventions.16

16  During the ninth session from 12 to 23 February 2001, the Working Group held a general debate on the alternative draft, introduced at the second meeting of the Working Group on 13 February 2001, submitted by the delegation of Mexico with the support of GRULAC. The draft proposed that States parties to the OP should create national mechanisms for the prevention of torture, which was strongly supported by most of the (p. 810) delegations.17 The majority of delegations in favour of the alternative draft stressed the supervisory role of the SPT vis-à-vis the national mechanisms and stated that ‘supervision’ had to be understood in a broad sense. Supervisory functions could be carried out through a permanent exchange of information and the submission of periodic and/or ad hoc reports by the national mechanisms. Other delegations, however, expressed their concern that the SPT would be reduced to serving merely as an advisory and technical assistance body. They insisted that the SPT should have visiting powers in addition to its role of monitoring the activities of the national mechanisms.18

17  During the tenth session of the Working Group from 14 to 25 January 2002, after a general debate was held on the proposed two-pillar system, which would involve combining an international visiting mechanism with national mechanisms in each participating State, the delegations discussed the international mechanism and its relationship with the Committee and the national mechanisms.19 The delegation of Spain, on behalf of the European Union and supported by the delegations of Argentina, the Czech Republic, Guatemala, Mexico, Canada, Sweden, Slovenia, New Zealand, Denmark, El Salvador, the Netherlands, Georgia, Germany, the United Kingdom, Norway, Latvia, France, Ecuador, Portugal, the Republic of Korea, Switzerland, Poland, Austria, and South Africa, had a preference for an international visiting mechanism which would not only provide technical assistance to the national mechanisms but also have very extensive visiting functions in connection with any place where people were deprived of their liberty. For the delegations of China, Cuba, Egypt, and the Syrian Arab Republic, the main function of the international mechanism was, however, to provide technical and financial support to the national mechanisms, whereas the visiting functions should mainly be entrusted to the national mechanisms.20

18  On 17 January 2002, the Chairperson-Rapporteur presented her proposal for an OP.21 Part III of her draft described the mandate of the SPT which included three main areas: visits to places of detention, technical assistance, and cooperation for the prevention of torture with relevant UN organs as well as international, regional, and national institutions.22

19  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.23

3.  Issues of Interpretation

20  According to the revised Costa Rica Draft of 1991, the main function of the SPT was to establish and carry out a programme of regular missions to each of the States parties and to undertake ad hoc missions, if required.24 The Mexican Draft of 2001, on the other hand, focused on the advice, assistance, cooperation and supervision of NPMs. Article 11 OP reflects a compromise between both approaches. Country missions, (p. 811) visit places of detention and making respective recommendations to States parties (as stipulated in Article 11(a) OP) remain the primary tasks of the SPT, which are further defined in the following Articles.25

3.1  Country Missions and Preventive Visits to Places of Detention

21  Conducting visits to places of deprivation of liberty is one of the crucial components of the SPT’s country missions. It ensures that one of the core parts of SPT’s mandate, namely its ‘operational function’ in order to improve systems of deprivation of liberty,26 is fulfilled on a regular and sustainable basis, and is in fact ‘the whole raison d’etre of OPCAT’.27 A corresponding duty for States parties to allow such visits and consider the SPT’s recommendations is contained in Article 12(a) OP. During the last reporting period,28 the SPT undertook ten official country missions in accordance with its mandate under Articles 11 to 13 OP,29 visited places of deprivation of liberty and made respective recommendations to the States parties concerned with regard to the protection of persons deprived of their liberty against torture and other forms of ill-treatment.

22  In practice, the SPT has—from the beginning—chosen a broad and forward-looking approach to its mandate with regard to strengthening the protection of persons deprived of their liberty. Already during its first years of operation, it noted that the scope of its preventive mandate30 was broad, encompassing factors such as

any relevant aspect of, or gaps in, primary or secondary legislation and rules or regulations in force; any relevant elements of, or gaps in, the institutional framework or official systems in place; and any relevant practices or behaviors which constitute or which, if left unchecked, could degenerate into, torture or other cruel, inhuman or degrading treatment or punishment … In examining examples of both good and bad practice, the SPT seeks to build upon existing protections, to close the gap between theory and practice and to eliminate, or reduce to a minimum, the possibilities for torture and other cruel, inhuman or degrading treatment or punishment.31

23  In its third Annual Report, it elaborated quite extensively on its preventive approach, stating that

[t]he process of prevention of torture and other cruel, inhuman or degrading treatment or punishment ranges from the analysis of international instruments on protection to the examination of the material conditions of detention, taking in along the way public policy, budgets, regulations, written guidelines and theoretical concepts explaining the acts and omissions that impede the application of universal standards to local conditions.32

(p. 812) 24  By the end of 2010, the SPT published its approach to the concept of prevention of torture and other forms of ill treatment under the OP in a separate document.33 There, it stated that it did not seek to strengthen the protection of persons deprived of their liberty by setting out additional substantive preventive obligations ‘but … by establishing, at both the international and national levels, a preventive system of regular visits and the drawing up of reports and recommendations based thereon’.34

25  Thus, the SPT had elaborated ‘a number of key principles which guide [its] approach to its preventive mandate’.35 First of all, the SPT pointed out its interest ‘in the general situation within a country concerning the enjoyment of human rights and how this affects the situation of persons deprived of their liberty’. Second, it stated that it must engage with the broader regulatory and policy frameworks relevant to the treatment of persons deprived of their liberty and with those responsible for them in each country. Moreover, it stressed the importance of a wide variety of procedural safeguards. It emphasized that recommendations regarding conditions of detention play a crucial role in effective prevention. Also, visits to States parties and to particular places of detention should—in the SPT’s view—be carefully prepared in advance, ‘as the manner in which visits are conducted, their substantive focus and the recommendations which flow from them may vary … in the light of the situations encountered in order to best achieve the overriding purpose of the visit, this being to maximize its preventive potential and impact’.36 The SPT noted that reports and recommendations should be based on rigorous analysis and be factually well grounded. Furthermore, it stated that ‘[e]ffective domestic mechanisms of oversight, including complaints mechanisms, form an essential part of the apparatus of prevention’.37 The SPT stressed the importance of a system of detention to be open to scrutiny. Moreover, it found that prevention was a ‘multifaceted and interdisciplinary endeavour’.

26  Last but not least, the SPT noted that in order to minimize the likelihood of torture or other forms of ill-treatment, respective expertise was needed in relation to all different kinds of groups, including women, juveniles, members of minority groups, foreign nationals, persons with disabilities, and persons with acute medical or psychological dependencies or conditions.38

27  In 2016, the SPT adopted an approach regarding the rights of persons institutionalized and treated medically without informed consent.39 In addition, it issued a specific document on the prevention of torture and other forms of ill-treatment of women deprived of their liberty.40

3.2  Advice to States Parties

28  The equally important task of cooperation with NPMs is defined in more detail in Article 11(b) OP. First, under Article 11(b)(i) the SPT shall advise and assist States parties in (p. 813) their efforts to establish, designate, or maintain an NPM.41 Since States, according to Article 17 OP, have one year after having become parties to the Protocol to achieve this task,42 this time span was used for conducting seminars in the respective countries or providing other forms of advice and assistance in order to ensure that the NPMs are truly independent, effective, and professional bodies which satisfy the criteria laid out in Articles 17 to 23 OP.

29  From the very beginning, the SPT was well aware of the important role it played in the process of developing NPMs. Thus, it requests States parties to send detailed information concerning the establishment of such mechanisms, containing information on their legal mandate, size, composition, expertise, financial resources, and frequency of visits.43 Already during its first years, however, the SPT was concerned about the lack of progress in many States parties with regard to the required process of installing appropriate and effective NPMs and the ‘noticeable gaps as regards the required process of consultation for the establishment of NPMs, the necessary legislative foundation and the practical provision, including human and budgetary resources, to enable the NPMs to work effectively’.44 Thus, the members of the SPT continue to take part in numerous meetings at national, regional and international levels, in order to advise and assist States parties in the establishment and/or designation of NPMs. Moreover, the SPT maintains contacts with various organizations involved in the development of NPMs in all the regions falling under the OPCAT mandate. Nonetheless, as at 31 December 2015, nineteen States parties still had not complied with their obligations under Article 17 of the OP.45

30  The SPT raised certain issues in relation to the establishment of NPMs. It stated that States parties had to consider various factors such as the complexity of the country, its administrative and financial structure and its geography. The NPMs should possibly complement existing systems of protection against torture and other forms of ill-treatment instead of replacing or duplicating any existing bodies.46

31  In order to facilitate the development of NPMs, the SPT set up Preliminary Guidelines concerning the development of NPMs already in its First Annual Report.47 In December 2010, it issued a revised set of Guidelines on NPMs ‘to add further clarity regarding the expectations of the SPT regarding the establishment and operation of NPMs’.