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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part IV National Preventive Mechanisms, Art.18 Independence, Pluralism, and Efficiency of National Preventive Mechanisms

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: 03 October 2023

Subject(s):
Torture — Treaties, interpretation — Jurisdiction of states, universality principle

(p. 890) Article 18  Independence, Pluralism, and Efficiency of National Preventive Mechanisms

  1. 1.  The States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel.

  2. 2.  The States Parties shall take the necessary measures to ensure that the experts of the national preventive mechanisms have the required capabilities and professional knowledge. They shall strive for a gender balance and the adequate representation of ethnic and minority groups in the country.

  3. 3.  The States Parties undertake to make available the necessary resources for the functioning of the national preventive mechanisms.

  4. 4.  When establishing national preventive mechanisms, States Parties shall give due consideration to the Principles relating to the status of national institutions for the promotion and protection of human rights.

1.  Introduction

1  The role of NPMs within the universal system of torture prevention is of special significance, especially as the novelty of the whole system ‘lies in requiring states to utilize such mechanisms in combating torture as a matter of international legal obligation’.1 (p. 891) In 2009, the General Assembly called on States parties to the OP to fulfil their obligation to designate or establish ‘truly independent and effective national preventive mechanisms for the prevention of torture’.2 Indeed, the provision of independence ‘lies at the heart of the OPCAT and is the most important characteristic that an NPM must possess’.3 The need for ensuring its independence was identified as one of the key issues during the OPCAT’s drafting process and also one of the key reasons why the original Mexican proposal was not acceptable to many states who feared ‘puppet’ NPMs and why a counter-proposal to strong SPT emerged.4

2  Article 18(4) OP explicitly refers to the Principles relating to the status of national institutions for the promotion and protection of human rights (‘Paris Principles’) that States shall only give ‘due consideration’ to when establishing NPMs.5 Hence, the provisions of Article 18 OP shall be interpreted in light of the travaux préparatoires and the Paris Principles.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

3  Mexican Draft (13 February 2001)6

Article 4

  1. 1.  When setting up a national mechanism, each State Party shall guarantee its functional independence and the independence of its staff.

  2. (p. 892) 2.  Each State Party shall take the necessary measures to ensure that the members of the national mechanism have the professional knowledge and skills required. It shall also take account of the gender balance and the need to ensure that ethnic groups and minorities are adequately represented.

  3. 3.  The members shall be chosen from among persons of high moral character having proven professional experience in the field of the practice of law and the administration of justice, in particular in criminal law, prison or police administration or in the various medical fields relevant to the treatment of persons deprived of their liberty or in the field of human rights.

4  EU Draft (22 February 2001)7

Article 15 (new)

For the purpose of this Protocol, a State Party wishing to establish a national mechanism undertakes to ensure that:

  1. (a)  The national mechanism will be composed of independent experts fulfilling the requirements set out in Articles 4 paragraph 3 and 5 paragraph 2;

  2. (b)  It has full powers to issue recommendations to the concerned authorities;

  3. (c)  It has unrestricted access to all places where persons are deprived of their liberty under all situations, including in peacetime, times of public disorder or states of emergency and during war in accordance with international humanitarian law;

  4. (d)  Unrestricted access to persons deprived of their liberty;

  5. (e)  Full freedom to interview the persons deprived of their liberty without witnesses, with the assistance of interpreters, if required, as well as all relevant personnel or persons;

  6. (f)  Unrestricted liberty to contact, inform and meet with the Sub-Committee with a view to implementing Article 9 paragraph 1 (d);

  7. (g)  The reports on its visits shall be public.

2.2  Analysis of Working Group Discussions

5  On 13 February 2001, at the second meeting of the Working Group during its ninth session from 12 to 23 February 2001,8 the delegation of Mexico introduced its alternative draft (prepared with the support of GRULAC) proposing the obligation for the States parties to the Protocol to establish national mechanisms for the prevention of torture.9

6  During the discussion, it was recalled that in order to ensure, as much as possible, the effectiveness of national mechanisms, it was important that the Protocol identified the principles on which they should be based. Thus, the Working Group considered related issues, such as the NPMs’ mandate, independence, degree of effectiveness, links with other national institutions, governmental and non-governmental status, the importance of flexibility, and the impact of their recommendations.10

(p. 893) 7  Some delegations stated that, in some countries, national institutions for the protection of human rights clearly lacked independence and effectiveness, and expressed concern about the ability of such institutions to reach the goals set forth in the Protocol.

8  During the tenth session of the Working Group from 14 to 25 January 2002, the concept of NPMs was further elaborated.11 Many delegations, including those of Spain (on behalf of the European Union), Argentina, Egypt, Georgia, El Salvador, the Republic of Korea, Poland, and South Africa, made statements regarding the ways and means of ensuring the independence of the national mechanisms. It was emphasized that these mechanisms should be established on the basis of the Paris Principles, that they should be independent from any other national authority, able to issue recommendations to the concerned authorities, and be adequately funded.

9  In the compromise proposal presented by the Chairperson-Rapporteur, the concept of national preventive mechanisms was described in Part IV, where it was stated that States would be required to maintain, designate or establish national mechanisms, based on the Paris Principles, to work in close cooperation with the Subcommittee.12

3.  Issues of Interpretation

10  While States parties enjoy a certain flexibility on the structure of their single or several NPMs according to Article 17 OP, they are obliged by Article 18 OP to guarantee the existence of an NPM with minimum guarantees, the most important of which is independence. In this sense, the SPT stated that ‘it is not for the Subcommittee to say in the abstract what may or may not be appropriate. All NPMs must of course be independent.’13 This em phasis that the SPT places on the characteristic of independence is also reflected in the fact that nearly every SPT’s mission report reiterates that ‘one of the crucial factors inhibiting ill-treatment is the existence of a fully functioning system of independent visits to monitor all places where persons may be deprived of their liberty’.14 Indeed, ‘[t]he linchpin for assessing the appropriateness of the choice of a particular institution as an NPM as well as what is seen as a factor in their effectiveness is independence’.15

11  Surprisingly, although it is the central requirement for NPMs and is, thus, mentioned often in the OPCAT (Articles 1, 17, 18, and 35), independence is not precisely defined, but is in fact formulated quite broadly, leaving terms open for interpretation. The provisions of Article 18 OP must be read together in order to ensure the full independence of NPMs in their different aspects.16 On the issue of establishment of the (p. 894) NPM, Article 18 (4) OP contains a specific reference to the ‘Principles relating to the status of national institutions for the promotion and protection of human rights’ (the ‘Paris Principles’).17

3.1  Functional Independence of NPMs

12  Article 18(1) OP requires States parties to guarantee the independence of NPMs. Independence is defined as ‘functional independence’, meaning that NPMs must enjoy independence from all State authorities (the legislative, executive, and judicial branches of Government),18 as well as from the authorities responsible for places of detention, civil administration, and party politics.

13  Functional independence is highly important for the effectiveness of NPMs,19 including several aspects. The first way to ensure functional independence is that the NPMs are based in a clear constitutional or at least legislative framework. Secondly, NPMs shall enjoy financial independence from the executive branch and dispose of a sufficient budget allocated by parliament that they are able to utilize as they wish. Furthermore, the members and staff of NPMs shall be appointed for a minimum period of office and be protected against any arbitrary removal during their term of office.

3.1.1  Establishment by Law

14  While the OP is silent on this issue, the Subcommittee elaborated also in its Analytical Assessment Tool for NPMs that it should be clearly set forth in a new or existing constitutional or legislative text ‘that the national preventive mechanism is to be given a preventive mandate and powers in accordance with the Optional Protocol’.20 The SPT has further reiterated that having a legal basis for an NPM is ‘a prerequisite for its institutional stability and functional independence’.21 Also the SRT demands for a clear legal basis.22

(p. 895) 15  A clear constitutional or legislative basis specifying the NPM’s mandate and powers guarantees that an NPM has structural independence from all branches of state,23 above all from the executive branch,24 including the police, military, and other security forces. Hence, an NPM placed under the authority of a Ministry or administratively attached to a Ministry raises questions about its functional independence. While, in practice, this link can be purely formal and the NPM can act truly independently in reality, it puts the NPM in a situation of vulnerability. The SPT for example expressed concern about the office of one NPM being within the Ministry of Justice, from which it derives the human resources for its operation.25

16  The SPT envisages the provisions on the NPM to be found in a clear legal basis, may it be a separate law26 or clear provisions in existing legislation. A separate law is especially important for the perceived independence of an NPM that is part of an institution with an additional mandate, as appearance of partiality can be exacerbated by the lack of a separate legal basis.27 The Paris Principles28 have been interpreted by the OHCHR and ICHR to require a separate law,29and the SRT supported this solution.30

17  As to the content of legislation establishing the NPM, it is of fundamental importance that the requirement for an NPM’s legal basis includes ‘the fact of designating an existing institution to carry out the NPM mandate’.31 Such ‘anchoring’ of the NPM in legislation guarantees that the only authority with the ability to alter the existence of the (p. 896) NPM is the legislature itself32 while it cannot guarantee freedom from abuse, namely by the legislature.33 When the body designated as the NPM performs other functions in addition to those under the OP, an explicit designation of the body carrying out the NPM, eg the entire NHRI or the ombudsperson, prevents uncertainty regarding which institution fulfils the mandate of the NPM and hence inhibits weakening the efficiency and the institutional credibility of the NPM.34 Further, the relationship between the NPM function and the rest of the organization, the working methods and the safeguards applicable to preserve the independence of that function should be clearly set out in internal regulations.35

18  What clearly has to be set out in a constitutional or legislative text is the mandate and powers of the NPM.36 According to the SPT, this is to be done by ‘specifying the composition of the mechanism and its sphere of competence’.37 The SPT further elaborated in its Assessment Tool that, first, ‘[s]uch legislation should extend the visiting mandate to all places where people are or may be deprived of their liberty, as set out in article 4 of the Optional Protocol’.38 This wording should be taken over and an exhaustive list avoided as it could exclude certain new types of places of detention.

19  Second, with reference to Articles 19 and 20 OP, the SPT states that the legislative text should grant the NPM at minimum:39

  1. (a)  The power to freely select the places of deprivation of liberty in which visits are to be carried out; to regularly examine the treatment of persons deprived of their liberty in those places; to select the timing of such visits and determine whether they are to be announced or unannounced; and to choose the persons to be interviewed;

  2. (b)  Access to all information, including personal and sensitive information, premises and persons necessary for pursuing its mandate;

  3. (c)  The power to make recommendations to the relevant authorities;40

  4. (d)  The power to submit proposals and observations concerning existing or draft legislation;41

  5. (e)  The right to have contact with the Subcommittee.42

(p. 897) 20  Third, as to the NPM’s mandate under Article 22 OP, the SPT notes that ‘[l]egislation should clearly state the obligation of competent authorities to examine the recommendations of the national preventive mechanism and to enter into a dialogue with it regarding the implementation of its recommendations’.43

21  Fourth, as to the obligation of the States parties to guarantee the functional independence of the NPMs according to Article 18(1) OP, the SPT notes that ‘[t]he relevant legislation should specify the period of office, whether determined or open-ended, of the members of the national preventive mechanism and any grounds for their dismissal’.44

22  Fifth, regarding the obligation of the States parties to guarantee the independence of the NPMs’ personnel according to Article 18(1) OP, the SPT states that

the legal basis should guarantee that the members of the national preventive mechanism and its staff enjoy such privileges and immunities as are necessary for the independent exercise of their functions,45 and should address the issue of reprisals and other such actions against members of the mechanism,46 their partners and any person who has communicated with the mechanism.47

The selection process for the members of the NPM should, according to the SPT, ‘preferably be prescribed in the governing NPM legislation’.48

23  When criticizing States parties for the lack or weak legal basis, the SPT has stipulated further recommendations on the content of NPM law. Regarding NPM membership, the SPT specifically recommended that the State party should enact specific legislative provisions setting out ‘appointment criteria and membership processes’.49 In another case, the SPT recommended that the law on the NPM ‘provide that membership of the NPM is incompatible with any other function which could affect its independence and impartiality’.50

24  Regarding the visits of NPMs, the SPT urged the State Party to ensure that the legal framework provides for ‘unrestricted access to all places of detention’.51 Moreover, ‘the State party should guarantee in law and in practice the full mandate of the NPM, in particular its right to conduct private interviews with persons deprived of liberty’.52 The NPM’s legal framework should also outline privileges and immunities of ‘those who contribute to the NPM, including experts and civil society’.53 The legal framework should furthermore guarantee ‘protection for persons who provide information to the NPM’.54

(p. 898) 25  Budgetary issues should also be regulated directly in the NPM law. As to Article 18 OP, the NPM’s legal framework should, in order to ensure its continuous financial and operational autonomy, ‘require a separate budget line in the State budget for the funding of the NPM’.55 On budgetary issues, the SPT deems it important to specify in the legislative provisions that the NPM will be allocated sufficient additional resources to enable it to fulfil its functions.56 It is also suggested that the source and nature of the NPMs’ funding be specified in their founding instruments.57

26  Similarly, the SPT suggested that the NPM law should mention the obligations of the State party to present and discuss the annual reports in the national legislative assembly.58

27  Finally, the SPT noted that the State party should ‘guarantee in law and in practice the full mandate of the NPM, in particular … to maintain direct contact with the SPT, in order, inter alia, to follow up on compliance with the present recommendations’.59

28  The NPM legislation has to be adapted to the national circumstances with the aim of an effectively functioning NPM.60 The SPT’s satisfaction with the NPM law in Paraguay61 and Honduras62 may be referred to here. Also some other NPM laws provide models on certain provisions, eg giving broader powers than required by the OPCAT63 or containing a provision that resemble the provisions of the OPCAT.64

(p. 899) 3.1.2  Financial Independence: ‘necessary resources for the functioning’

29  Financial independence is not expressly mentioned in the text of the OP. However, it is a very important aspect of functional independence and implied by the obligation of States parties under Article 18(3) ‘to make available the necessary resources for the functioning of the national preventive mechanisms’. In this sense, the SPT has stressed that ‘only financial autonomy of the NPM can guarantee its functional independence’.65 The SPT stated clearly in its Guidelines that ‘[t]he NPM should enjoy complete financial and operational autonomy when carrying out its functions under the Optional Protocol.’66 The Paris Principles state that ‘[t]he national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding.’67 Financial independence thus has two aspects: autonomy on budgetary issues and disposal of an adequate budget.

3.1.2.1  Financial Autonomy

30  For the SPT, the NPM should enjoy complete financial autonomy when ‘carrying out its functions’ under the OP.68 Also the Paris Principles make clear that financial autonomy is a fundamental requirement of independence: without it NPMs ‘cannot exercise operational autonomy or independence in decision-making’.69 Hence, the NPM should be able to make decisions on how best to allocate funding for specific aspects of its work free from both governmental control and the need for governmental authorization or approval.70

31  As to the source of funding, ie the body determining the funding, the Paris Principles formulate an aim of funding ‘to be independent of the Government and not be subject to financial control’.71 The implicitly suggested solution that funding be provided by the legislature has also been foreseen for NHRIs to assure their overall (p. 900) greater independence from the executive,72 an issue that is even more crucial for NPMs.73 However, even funding by the legislative may not be without problems.74 The NPM’s founding law should specify the source and nature of funding.75 Financial autonomy implies also that the NPM is funded through a separate budget line.76

32  In practice, most NPMs receive their funding from the State budget77 or from the same source as the institution the NPM has been established from or has become (p. 901) part of.78 In fact, the source of funding has not so often been an issue of concern as the level of funding.79

3.1.2.2  Adequate Budget

33  While Article 18(3) OP requires States parties only to make the resources necessary for ‘the functioning’ of an NPM available, the SPT Guidelines state that ‘[t]he necessary resources should be provided to permit the effective operation of the NPM in accordance with the requirements of the Optional Protocol’.80

34  Resources for an effective functioning include human, material and financial resources.81 Material resources include, inter alia, vehicles, interpretation, and working spaces.82 As to human resources, the NPM must have sufficient personnel and financial means to remunerate experts to visit the number of places of detention covered by the NPM’s mandate effectively.83 The budget should be sufficient to leave the NPM the decision on frequency and manner of the visits and follow-up visits84 as well as enable the NPM to fulfil its other functions, ie write visit reports and annual reports including recommendations, and submit proposals on legislation.85

(p. 902) 35  Clearly, the mandate of NPMs is very cost-intensive. After all, to conduct regular visits to all places of detention by a sufficient number of qualified staff, to examine regularly the treatment of persons detained therein and to make recommendations to the relevant authorities is a highly professional, time consuming, responsible, and emotionally demanding task. Such positions are only attractive for the most competent and professional individuals when an adequate honorarium is provided if they exercise this function on a part-time basis.86 Thus, in the mission report on Malta, the SPT recommended that the State party ‘consider making membership of the NPMs a full-time and remunerated position’.87 In its mission reports to Germany, the SPT voiced concrete concern that there was only one honorary member with a mandate extending to some 370 institutions88 and four honorary members for the Joint Commission responsible for monitoring some 13,000 places of detention.89 Indeed, it must be underlined: it is ‘by the allocation of adequate resources that States parties demonstrate their genuine commitment to the prevention of torture’.90 If not, a consequently low quality of work will decrease the overall deterrent effect of the NPM’s work and thereby negatively affect its preventive function.91

3.1.3  Period of Office and Protection From Removal

36  The third aspect of functional independence is that the members and staff of NPMs shall be appointed for a minimum period of office. The SPT noted that ‘[p]eriods of office, which may be renewable, should be sufficient to foster the independent functioning of the NPM.’92 When the period of office of NPM members is determined,93 it seems reasonable that the members and staff of NPMs be appointed for a minimum period of four to six years.94

(p. 903) 37  As with the members of the SPT, staggering the end-date of terms of office of the NPM members ensures that there is continuity in the membership and institutional knowledge. The relevant legislation should specify the period of office.95

38  The issue of dismissal is crucial for the independence of the NPM. The members and staff of the NPM shall be protected against any arbitrary removal during their term of office. Grounds for dismissal shall be specified in the relevant legislation.96

3.2  Independence of the NPMs’ Personnel

39  Besides independence of the NPM, Article 18(1) OP obliges the States Parties to guarantee that their ‘personnel’ is ‘independent’. To reach this aim of independence for NPM members, the procedure for their selection has to fulfil certain criteria.

3.2.1  ‘personnel’

40  An NPM’s independence is affected by how individuals carry out the day-to-day work, the manner in which they operate, including their experience, as well as their ability to keep certain distance and not to be influenced by others.97 Hence, ‘personnel’ is to be understood as every person involved in the substantive work of the NPM: members of the NPM (ie, persons officially appointed to the institution),98 staff (ie, persons hired by NPM members to support their work),99 as well as external experts and other potential contributors.100

3.2.2  ‘independence’

41  According to the SPT’s Guidelines, ‘[m]embers of NPMs should … ensure that they do not hold or acquire positions which raise questions of conflicts of interest’.101Hence, the NPM’s independence and impartiality stand and fall with the personnel carrying out the NPM’s mandate. Conflicts of interest should, therefore, be avoided by all personnel of the NPM.102

(p. 904) 42  Conflicts of interest can only be prevented if individuals are institutionally and personally independent. Institutional independence leads to the situation that neither the members nor the staff of the NPM may be subject to any orders or instructions by any State authority or other stakeholder. Hence, due to potential conflict of interest, persons holding a position in the branches of state,103 above all from the executive branch,104 including the police, military, and other security forces, are precluded from the position as NPM members or other personnel.105 Civil servants should not be appointed as members or staff of an NPM; also if they are not subject to any orders or instructions during their terms of office, perceived independence would suffer inappropriately.

43  Personal independence is more difficult to grasp. It has been seen as lack of close friendships, political allegiances or pre-existing professional relationships vis-à-vis leading figures in the respective areas, with focus on the executive branch.106

44  Even if a person working for an NPM acts in an impartial manner despite existing institutional or personal dependence, perceived independence is at stake. The loss of this valuable characteristic can seriously compromise the work of the NPM.

45  Privileges and immunities are crucial for independence. Article 35 OP provides further details in this regard.

46  Independence of the NPMs` personnel is assured by a certain selection procedure and period of office.

3.2.3  Procedure for Selection of NPM Members

47  According to the SPT and with reference to Article 18(1) and (2) OP, members of the NPM should be selected through an ‘open, transparent and inclusive process’.107 The head of the NPM should also be appointed by such a procedure.108 This selection process should preferably be prescribed in the governing NPM legislation.109 Such legislation should also specify the period of office of the members of the NPM as well as any grounds for their dismissal110 and set out ‘appointment criteria and membership processes’.111

48  The State party should advertise publicly posts becoming vacant within the NPM.112 The published criteria should aim to select the most competent113 and independent114 persons. A public nomination process is highly important as it also guarantees the other qualities (p. 905) envisaged by the SPT: an open, inclusive, and public appointment procedure of competitive character.115Additionally, it is suggested that interviews be held in public.116 Public can also keep an eye on the aim that the selection is in accordance with published criteria.117

49  The consultation process of the State party should be very inclusive, involving civil society organizations such as NGOs, social and professional organisations, and universities, as well as other experts.118 The process can be led by an independent judicial appointments commission119 or in case of an institutional and political separation between the executive Government and the parliament, a Parliamentary Committee.120

50  The selection body taking the substantive decision (ie, appointing the NPM members) must be free from any perceived or real conflict of interests.121

51  There are no prerogatives regarding the formal appointment, but direct appointment by the executive branch of Government is incompatible with the Paris Principles.122

(p. 906) 3.3  Expertise and Pluralism

3.3.1  ‘required capabilities and professional knowledge’

52  For the NPM to be effective, professional work is necessary when exercising its mandate by conducting visits123 or issuing recommendations.124 An NPM can only have a deterrent, ie preventive, effect in the long run if visits are conducted professionally and the recommendations are of a certain quality. Hence, the prerogative for expertise and pluralism concerns the same persons that Article 18(1) OP demands independence for the personnel of the NPM, ie the NPM’s members, staff,125 external experts, and other potential contributors.

53  The NPM should dispose over an adequate range of expertise within its membership which should only occasionally, but not regularly, be supplemented by engaging outside experts.126 Adequate expertise among the NPM members is also a prerogative as decision-making should be in the hand of a collegial body reflecting expertise and pluralism.127

54  The expertise of the NPM should be manifold to enable a multidisciplinary approach128 and to be able to adequately deal with the numerous issues covered by the broad mandate provided by the OP.129 Also Principle 29 of the Principles for the Protection of (p. 907) All Persons under Any Form of Detention or Imprisonment requires that ‘places of detention shall be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment’.130

55  The SPT places a different emphasis than that foreseen in Article 5(2) OP relating to the Subcommittee on Prevention.131 Pursuant to the SPT Guidelines, ‘inter alia, relevant legal and health-care expertise’ should be included.132 In order to lessen the likelihood of ill-treatment, the SPT notes the need of expertise in relation to persons in a situation of vulnerability, such as women, juveniles, members of minority groups, foreign nationals, persons with disabilities, and persons with acute medical or psychological dependencies or conditions.133

56  Hence, the NPM’s team should include professionals from the medical, psychiatric, legal, and psychosocial fields134 as well as experts relating to indigenous peoples,135 children and adolescents,136 women’s rights137 and gender,138 social work, security, and pedagogy.139 International expertise is also relevant, namely in human rights legal standards, especially in view of the human rights-based approach of the NPM’s work.140

57  The obligation for multidisciplinary expertise among the membership of the NPM requires of NHRIs and in particular Ombudsman’s offices, who are predominantly made up of lawyers to draw on additional expertise. Solutions can be the formal inclusion of civil society representatives by the ‘Ombudsman plus’ model,141 or the involvement of specific experts in particular visits.142 In some smaller States that have difficulties finding available local expertise, hiring experts from neighbouring States has been considered.143

(p. 908) 58  To make their work most efficient, the NPM’s staff and members should be regularly trained and review their working methods.144

59  The OP envisages that the NPM should function as a soft-power instrument, using recommendations and constructive exchange to fulfil its task. Therefore, capabilities that are also necessary for the NPM personnel are, as demanded for the members of the SPT by Article 5(2) OP, high moral character or integrity145 ‘and respect within society. Members should also have demonstrated a personal commitment to the prevention of torture and ill-treatment and improvement of conditions in places of detention.’146

3.3.2  Composition of the Membership

60  Article 18(2) OP explicitly provides that States parties, in establishing NPMs, shall ‘strive for a gender balance and the adequate representation of ethnic and minority groups in the country’. While an NPM membership with expertise in gender issues and minority rights could already guarantee sensitivity for special issues regarding these groups, personal representation would guarantee it further. More importantly, the principle of pluralism ensures the NPM to have the knowledge and the ability to gather the information necessary to make effective recommendations.147 Sensitivity to different groups will help the NPM to fulfil its mandate more effectively, as it may make it possible to obtain better information from interviewees when they can talk about their treatment with someone of their ethnic or minority group, can communicate directly in the same language of a linguistic minority, or can share extremely intimate issues with a person of the same gender.148

3.3.3  ‘adequate representation of ethnic and minority groups’

61  While the term ‘ethnic and minority groups’ can be understood as referring to ‘national, ethnic, religious and linguistic minorities’,149 in line with international human rights law, the phrase could be interpreted in a broader manner in the context of the OP, including members of other groups in a situation of vulnerability such as migrants, (p. 909) persons with special needs, or being LGBTI.150 The ‘adequate representation’ of the respective country’s minority groups is of relevance here. Hence, the SPT urged a State party to ensure that the composition of the NPM ‘adequately represents the country’s key ethnic and minority groups’.151 In this sense, while the OPCAT does not specifically specify the need for the inclusion of indigenous communities, this is an issue to be considered in countries with indigenous inhabitants.

62  The principle of pluralism in the composition of national human rights institutions plays an important role in the Paris Principles and is also appropriate for NPMs.152

63  Due to its importance, the SPT also recommends that provision be made for gender balance and ethnic and minority representation in the NPM composition.153

3.4  Due Consideration of the Paris Principles

64  Article 18(4) OP explicitly refers to the Paris Principles that States parties ‘shall give due consideration’ to when ‘establishing NPMs’, ie during the whole procedure of any establishment according to Art 17 OP. The Paris Principles consist of a comprehensive series of recommendations on the role, composition, status, and functions of national human rights institutions (NHRIs).154 In particular, the Paris Principles stress the independence, pluralism, and efficiency of national human rights institutions and demand that their composition and mandate should be clearly set forth in a constitutional or legislative act.

65  In fact, by explicitly referring to the Paris Principles, Article 18(4) OP was interpreted as also possibly encouraging states to use NHRIs for the implementation of the OP155—which, to date, the majority of States parties to the OP have done.156 However, it must be noted that an NHRI’s compliance with the Paris Principles does not equal compliance with the OP, since the requirements on NPMs are found in Article 18(1)–(3) OP. Hence, on the one hand, compliance with the Paris Principles is the key determining (p. 910) factor in the accreditation process by the Global Alliance of NHRIs (GANHRI, before the Sub-Committee on Accreditation (SCA)) of the International Coordinating Committee (ICC) with status ‘A’, ‘B’, or ‘C’.157 On the other hand, the SPT made clear that even after the accreditation process has become more robust and arguably more independent,158 accreditation by the ICC with ‘A’ ‘does not automatically qualify an NHRI as an NPM’.159 Therefore, the accreditation process by the ICC cannot be seen as indicative for the level of fulfilment of the OP requirements by the respective NHRI, ie not even a status ‘A’ of an NHRI means that it is in full compliance with the OP.160

Stephanie Krisper

Footnotes:

1  Malcolm D Evans, ‘The Place of the Optional Protocol in the Scheme of International Approaches to Torture and Torture Prevention and Resulting Issues’ in Herald c Scheu and Stanislava Hýbnerová (eds), International and National Mechanisms against Torture (University Karlova Law School Publication 2004) 41.

2  UNGA Res 64/153 of 18 December 2009.

3  E Steinerte, ‘The Jewel in the Crown and Its Three Guardians: Independence of National Preventive Mechanisms Under the Optional Protocol to the UN Torture Convention’ (2014) 14 Human Rights Law Review 1, 6–7; see also Elina Steinerte and Rachel Murray, ‘Same but Different? National Human Rights Commissions and Ombudsman Institutions as National Preventive Mechanisms Under the Optional Protocol to the UN Convention Against Torture’ (2009) Special Issue 2009 Essex Human Rights Review 54, 60.

4  Steinerte (n 3) 6.

5  The formulation has its good reason. First, some provisions of the Paris Principles are owed to the broad mandate of the NHRIs to protect and promote the broad spectrum of human rights by numerous responsibilities (UNGA, ‘Principles Relating to the Status of National Institutions’ Res 48/134 of 20 December 1993 (Paris Principles), Principle 3 (Competence and responsibilities)) and, hence, are not suited to the NPM’s specific preventive mandate with the main responsibility to carry out visits to places of deprivation of liberty and provide reports and recommendations to the authorities. Therefore, provisions may not be relevant at all or may be ‘superseded by more detailed provisions within the OPCAT’ (APT and IIDH, Optional Protocol to the UN Convention Against Torture: Implementation Manual (rev edn, APT and IIDH 2010) 91, referring to APT (ed), Guide: Establishment and Designation of National Preventive Mechanisms (APT 2006) 38). Second, the Paris Principles focus more on the establishment and creation of bodies and less on their actual practice and effectiveness once they are operational; see Rachel Murray, ‘National Preventive Mechanisms Under the Optional Protocol to the Torture Convention: One Size Does Not Fit All’ (2008) 26 Netherlands Quarterly of Human Rights 485 (‘One Size Does Not Fit All’), 489. Also some other authors have challenged the usefulness of the instrument, arguing that the Paris Principles pay more attention to formal requirements and fail to examine the actual effectiveness of NHRIs on the ground: see Obiora Chinedu Okafor and Shedrack C Agbakwa, ‘On Legalism, Popular Agency and “Voices of Suffering”: The Nigerian National Human Rights Commission in Context’ (2002) 24 Human Rights Quarterly 662; SPT, ‘Analytical Assessment Tool for National Preventive Mechanisms’ (2016) UN Doc CAT/OP/1/Rev.1, para 3; see more under para 65.

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  E/CN.4/2001/67 (n 6).

9  See above Arts 3 and 17 OP.

10  E/CN.4/2001/67 (n 6) para 28.

11  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, paras 37ff.

12  ibid, para 50.

13  SPT, ‘Forth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2011) UN Doc CAT/C/46/2, para 62.

14  See SPT, ‘Report on the Visit to the Maldives’ (2009) UN Doc CAT/OP/MDV/1, para 15. Nearly verbatim the same appears in a number of other SPT visit reports: see SPT, ‘Report on the Visit to Sweden’ (2008) UN Doc CAT/OP/SWE/1, para 16; SPT, ‘Report on the Visit to Benin’ (2011) UN Doc CAT/OP/BEN/1, para 14; SPT, ‘Report on the Visit to Mexico’ (2010) UN Doc CAT/OP/MEX/1, para 12.

15  Rachel Murray and others, The Optional Protocol to the UN Convention against Torture (Oxford University Press 2011) 119.

16  This can be exemplified by the following statement of the SPT: ‘Article 18 (1) of the Optional Protocol [on functional independence of the NPM and independence of its personnel] is unequivocal on the need for the State party to allocate specific resources to national preventive mechanism work, so as to guarantee the operational independence of the mechanism’: see 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 11.

17  Paris Principles (n 5).

18  Steinerte (n 3) referring to Richard Carver, Performance & Legitimacy: National Human Rights Institutions (2nd edn, International Council on Human Rights Policy 2004) 58.

19  APT and IIDH (n 5) 89.

20  CAT/OP/1/Rev.1 (n 5) para 10, referring to Paris Principles (n 5) and SPT, ‘Guidelines on National Preventive Mechanisms’ (2010) UN Doc CAT/OP/12/5, para 7. Still more vague in SPT, ‘Third Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2010) UN Doc CAT/C/44/2, para 52: ‘The Subcommittee wishes to reiterate the provisions of its preliminary guidelines to the effect that the national preventive mechanism should preferably be established by law or by the Constitution.’

21  SPT, ‘Report on the Visit to Honduras’ (2010) UN Doc CAT/OP/HND/1, para 262; in cases where States parties designated the NPM or intended to define its modalities of work in a decree, the SPT either urged the drafting of legislation to consolidate and reinforce the original decree creating the NPM or recommended that the modalities of work of the NPM be spelt out clearly in the draft NPM law: see CAT/OP/MEX/1 (n 14) para 30 and CAT/OP/BEN/1 (n 14) para 22. Designation of bodies as NPM by Legal Notices, ie regulations, led the SPT to voice concern ‘at the weakness of the legal framework providing for the independent and effective functioning of the NPMs’; see SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of the Republic of Malta, Report to State Party' (2016) UN Doc CAT/OP/MLT/1, para 25.

22  SRT (Nowak), ‘Interim