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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part VI Financial Provisions, Art.26 Special Fund

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: 11 December 2023

Subject(s):
Torture — Treaties, interpretation

(p. 973) Article 26  Special Fund

  1. 1.  A Special Fund shall be set up in accordance with the relevant procedures of the General Assembly, to be administered in accordance with the financial regulations and rules of the United Nations, to help finance the implementation of the recommendations made by the Subcommittee on Prevention after a visit to a State Party, as well as education programmes of the national preventive mechanisms.

  2. 2.  This Special Fund may be financed through voluntary contributions made by Governments, intergovernmental and non-governmental organisations and other private or public entities.

1.  Introduction

1  Article 25 OP only provides that the expenditure incurred by the SPT shall be borne by the United Nations. But the main responsibility of carrying out visits to places of detention, according to the two-pillar system of the Protocol, rests with the NPMs to be established in every State party. As with the SPT, the respective costs are fairly considerable. In addition, States parties have to carry out measures and programmes aimed at improving conditions of detention and preventing practices of torture and other forms of ill-treatment in accordance with the respective recommendations of the SPT under Articles 12(d) and 16(1) OP, and of the NPM under Articles 19(b) and 22 OP. Such programmes may include the renovation of prisons and other detention facilities, far-reaching reforms of the criminal justice system, or the training of police officers and prison guards. In order to help finance the implementation of these recommendations, as well as of educational programmes of the NPMs, the drafters of the Protocol decided to establish a Special Fund.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

2  Revised Costa Rica Draft (15 January 1991)1

(p. 974)

Article 16

The expenditure incurred by the implementation of the present Protocol, including all its missions, shall be borne by the United Nations.

  1. [1.  States Parties shall contribute to the expenditure incurred in the implementation of the present Protocol on the basis of the scale used by the United Nations.

  2. 2.  There may be established a Special Fund based on voluntary contributions of States, intergovernmental organizations, non-governmental organizations, private institutions and individuals.

  3. 3.  The Special Fund shall supplement the financing by the States Parties of all the activities provided for in this Protocol. It shall be managed by the Subcommittee, which shall report to a Board of Trustees appointed by the States Parties.

  4. 4.  Any expenses, such as the cost of staff, interpreters and facilities, incurred by the United Nations pursuant to Article 7 paragraph 4, shall be reimbursed by contributions of the States Parties and the Special Fund.]

3  Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)2

Article 16 bis

  1. 1.  A Special Fund shall be set up in accordance with General Assembly procedures, to be administered in accordance with the financial regulations and rules of the United Nations, to help finance the implementation of the recommendations made by the Sub-Committee to a State Party expressing the need for additional assistance for its ongoing efforts to improve the protection of persons deprived of their liberty.

  2. 2.  This Fund may be financed through voluntary contributions made by Governments, intergovernmental and non-governmental organizations as well as other private or public entities.

4  Text of the Articles which Constitute the Outcome of the Second Reading (2 December 1998)3

Article 17 [16 bis]

  1. 1.  A Special Fund shall be set up in accordance with General Assembly procedures, to be administered in accordance with the financial regulations and rules of the United Nations, to help finance the implementation of the recommendations made by the Sub-Committee to a State Party expressing the need for additional assistance for its ongoing efforts to improve the protection of persons deprived of their liberty.

  2. 2.  This Fund may be financed through voluntary contributions made by Governments, intergovernmental and non-governmental organizations as well as other private or public entities.

5  Mexican Draft (13 February 2001)4

(p. 975)

Article 21 (former Article 17 [16 bis])

  1. 1.  A Special Fund shall be set up in accordance with General Assembly procedures, to be administered in accordance with the financial regulations and rules of the United Nations, to help finance the implementation of the recommendations of the Sub-Committee, in response to an express request by a State Party for assistance for its efforts to improve the protection of persons deprived of their liberty.

  2. 2.  This Fund may be financed through voluntary contributions made by Governments, intergovernmental and non-governmental organizations and other private or public entities.

6  EU Draft (22 February 2001)5

Article 18 (old 17)

  1. 1.  A Special Fund shall be set up in accordance with General Assembly procedures, to be administered in accordance with the financial regulations and rules of the United Nations, to help finance the implementation of the recommendations made by the Sub-Committee to a State Party expressing the need for additional assistance for its ongoing efforts to improve the protection of persons deprived of their liberty.

  2. 2.  This Fund may be financed by voluntary contributions.

2.2  Analysis of Working Group Discussions

7  During the first session of the Working Group, held from 19 to 30 October 1992, one observer stated that the idea of establishing a special fund based on voluntary contributions was worthy of consideration and that his country would contribute substantially to such a fund, if established. Another delegation stated that it had no difficulty with the idea of the establishment of a special fund based on voluntary contributions for this purpose, but expressed some apprehension about the extra cost which might result from the appointment of the board of trustees.6

8  At its fourth session from 30 October to 10 November 1995, the Working Group decided to formulate issues relating to a special fund in a separate Article 16 bis.7 The observer for South Africa suggested the following text:

  1. 1.  A Special Fund based on voluntary contributions shall be set up in order to help finance the implementation of the recommendations made by the Sub-Committee to a State Party in view of reinforcing/strengthening if necessary the protection of people deprived of their liberty in the sense of this Protocol.

  2. 2.  This Fund shall be financed through voluntary contributions made by States and other institutions or bodies.

  3. 3.  A Board of Trustees, made up of five persons, selected in their personal capacity by the Secretary-General upon proposals made by the States Parties, will be responsible for supervising the correct use of these funds and their management.8

9  The majority of delegations supported the idea of establishing such a fund. The observer for Spain, however, stated that there were already some funds within the Centre for Human Rights and that it might be wise to strengthen those funds first before (p. 976) establishing a new fund. The representatives of Brazil, Chile, El Salvador, and the United States of America found that the existence of other funds should not be considered as an obstacle to the establishment of the new fund. The delegations of Canada and Germany argued that certain criteria would need to be established and followed to ensure that the countries which really needed the money obtained it from the fund. The representative of the United Kingdom wished to keep open the option of the fund being operated either through an existing fund or, if not, then possibly through borrowing an existing board of trustees from an existing fund. The representative of Japan expressed the view that the fund should be financed by voluntary contributions made by the States parties to the Protocol and be administered by the UN Secretary-General in accordance with the applicable provisions of the financial regulations and rules of the United Nations.

10  After further discussions in the informal drafting group, its Chairperson submitted the results of the elaboration of this article. She said that the group proposed to include two paragraphs in Article 16 bis. Paragraph 1 provided for the establishment of a special fund to assist countries expressing a need for additional assistance for their ongoing efforts to improve the protection of persons deprived of their liberty. Paragraph 2 set out the sources from which the special fund might be financed.

11  The provisions, as revised by the drafting group, were adopted as Article 16 bis.9 However, certain States, eg the delegation of Canada, expressed concern about the expensive administration of the fund in question.10

12  The representative of the United States of America proposed submitting to the Commission on Human Rights the following recommendation on behalf of the Working Group:

  1. 1.  The Working Group believes that the establishment of a special fund for activities provided for in this Protocol should be accomplished in the most economical way possible in order to maximize the amount of voluntary contributions to the fund available for programmes, rather than administration.

  2. 2.  To that end the Working Group recommends that subsequent meetings of the Working Group continue to keep in mind that the special fund may be efficiently administered by the Board of Trustees of the Voluntary Fund for Technical Cooperation (VFTC) and that the Working Group also, at its meeting when it finalizes the draft Protocol and recommends it for adoption, consider transmitting this recommendation to the Centre for Human Rights for forwarding to the General Assembly through the Economic and Social Council.

  3. 3.  With regard to Article 16 bis of the draft OP, the Working Group recommends that the Commission on Human Rights invite States Members of the United Nations to request assistance from the VFTC of the Centre for Human Rights for programmes designed to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment.11

13  In addition, the US representative said that his delegation had consulted the Advisory Services and Technical Cooperation Branch on that issue and the Branch also agreed that the existing voluntary cooperation structure could handle the additional fund by setting up a separate account, so there would not be any mixing of funds, but it could be administered by the same Board of Trustees and there would be a large cost saving if that was done.12

(p. 977) 14  The majority of delegations supported the United States of America’s recommendation. In particular, the representative of France said that the provisions of Article 16 bis did not rule out the possible use of an already existing fund such as the VFTC to strengthen the protection of persons deprived of their liberty.13

15  At the sixth session, held from 13 to 24 October 1997, the Chairperson-Rapporteur again invited delegations to discuss Article 16 bis.14 The representative of the Netherlands proposed adding the phrase ‘as well as through the regular budget of the United Nations’ to the end of paragraph 2 of Article 16 bis. The delegation of South Africa pointed out that a special fund would help developing countries and would assist States to respond to the recommendations of the SPT. The funding of the SPT was a separate issue from the establishment of a special fund for assistance for the implementation of the recommendations of the SPT by States parties in need. The observers for Switzerland, Amnesty International, and the Association for the Prevention of Torture, as well as the representatives of Denmark, Italy, and the United Kingdom made comments supporting this view. At the fourth plenary meeting, Article 16 bis was adopted without amendments.15

16  In the proposal presented by the Chairperson-Rapporteur, the educational activities and programmes of NPMs were included within the scope of the Special Fund contained in Article 26 OP.16

17  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.17

3.  Issues of Interpretation

18  The proposal to establish a Special Fund based on voluntary contributions of States, intergovernmental organizations, NGOs, private institutions, and individuals was already included in Article 16 of the revised Costa Rica Draft of 199118 and was supported by most States during the drafting in the Working Group.19 While the activities of the SPT, including its country missions, are financed by the regular UN budget, the considerable costs necessary for a proper implementation of the provisions of the Protocol at the domestic level could be financed in poorer countries with the assistance of the Special Fund. Although the establishment of effective NPMs causes considerable expenses for States parties, the regular costs of NPMs, their members, staff and facilities, cannot be financed by the Special Fund. In this respect, Article 26(1) only refers to ‘education programmes’ of the NPMs. Why only this single aspect of the work of the NPMs was included in the text of Article 26 remains unclear. All previous drafts were fairly open and referred in general to the efforts of States parties to improve the protection of persons deprived of their liberty. But the Chairperson-Rapporteur, in her final draft of January 2002, included (p. 978) education programmes of the NPMs, which may lead to the conclusion that other activities of NPMs shall not be financed by the Fund, unless explicitly recommended by the SPT after a country mission in accordance with Article 11(b)(iv).

19  The main purpose of the Special Fund, which became operational in summer 2011, is ‘to help finance the implementation of the recommendations made by the Subcommittee on Prevention after a visit to a State party’. Earlier drafts had also required an ‘express request by a State party for assistance’20 or at least ‘expressing the need for additional assistance’.21 The deletion of these words in the final draft of the Chairperson suggests that the initiative might also come from the SPT. In any case, the SPT should at least be requested by the Board of Trustees to give its opinion on the usefulness of providing funds to a particular State party. Since such funds shall only be provided after a country mission by the SPT, a certain involvement of the SPT seems to be guaranteed. In our opinion this would be necessary in order to ensure that the funds are in fact spent on a project aimed at implementing the respective recommendations of the SPT. The SPT might also consider a follow-up mission in accordance with Article 13(4) OP for the purpose of assessing whether or not the funds are in fact spent accordingly.22

20  According to Article 11(a) OP, the SPT shall make recommendations on the basis of its country missions ‘concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment’.23 Possible projects to be financed by the Special Fund must, therefore, aim at improving conditions of detention, the protection of detainees against ill-treatment and/or the prevention of torture and other forms of ill-treatment during detention. This includes all programmes in the context of the reform of the criminal justice and prison system, for example the renovation of detention facilities, legislative reforms, training of judges, prosecutors, law enforcement officials and prison guards, review of interrogation methods, forensic examinations of detainees, anti-torture complaints and investigation mechanisms, anti-corruption programmes in the context of the administration of criminal justice, and all other measures aimed at the prevention of torture in accordance with the respective provisions of the CAT and other relevant UN and regional instruments.24

21  According to Article 11(b)(iv) OP, the SPT shall also 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’. If the SPT, on the basis of its contacts with NPMs and its experiences during a country mission, arrives at the conclusion that the respective NPM lacks the required characteristics of independence and effectiveness, as required by Article 18 OP, or lacks the capacity and resources to carry out its mandate effectively, it may make a respective recommendation on the strengthening of the NPM to the State party concerned, the implementation of which may also be assisted by a project financed by the Special Fund.

22  Article 26(1) OP provides that the Special Fund shall be ‘administered in accordance with the financial regulations and rules of the United Nations’. The Financial (p. 979) Regulations and Rules of the United Nations provide, in particular, that UN funds shall be administered by an independent Board of Trustees to be appointed by the General Assembly or by the States parties to the respective treaty.25 Thus, the Fund is currently being managed by the OHCHR, its Grants Committee acting as an advisory body. Since the main purpose of the Special Fund is to help finance the implementation of the SPT’s recommendations after its country missions, the SPT is consulted in the development and assessment of the projects to be financed by the Special Fund. Consequently, it identifies thematic priorities (by country) for the annual call for applications26 and—with the objective of funding—the implementation of recommendations contained in its mission reports. The SPT’s bureau is kept informed about the applications received and the grants awarded, and members of the SPT may generally be consulted on any issues arising from applications and asked to join relevant meetings.27

23  According to Article 26(2) OP, the Special Fund receives voluntary contributions from governments, intergovernmental and non-governmental organizations, and other private or public entities. As at 31 December 2011, contributions to the Special Fund in the amount of $855,263.16 had been received from the Maldives, the Czech Republic, Spain, and the UK.28 In 2012, it received contributions from the UK, the Czech Republic, Switzerland, and Italy.29 In its eighth Annual Report, the SPT stated that it hoped ‘that the Fund will continue to support projects that are essential for the effective prevention of torture and ill-treatment, and calls upon States to continue to support the Fund financially’.30 Moreover, the SPT expressed that it believed ‘that the work and visibility of the Fund would be enhanced were its administrative basis to be reviewed and a discrete Board of Trustees established to oversee its operation’.31 As in 2015 only one contribution was made to the Fund, the SPT established a working group ‘to review with the secretariat of the Fund how the work and visibility of the Fund could be maintained and enhanced’.32 Moreover, the working group should study the Fund’s administrative functions and explore the options for and possibilities of establishing an advisory mechanism to oversee its operation.33 Consequently, the Secretary-General called on governments, intergovernmental and non-governmental organizations, and other private or public entities to contribute to the Special Fund, and to ensure sustained financial support to it.34 As a considerable amount of money is required to finance the implementation of the various (p. 980) recommendations of the SPT, in the future, trans-national corporations and other business enterprises, above all members of the UN Global Compact, could also be encouraged, as part of their activities in the context of corporate social responsibility programmes, to provide contributions to the Special Fund.

24  Applications for funding may be submitted by State institutions of States parties to the OP visited by the SPT and that have agreed upon the publication of the SPT report, and the NPMs of the said States parties. Moreover, applications from NHRIs compliant with the Paris Principles as well as from NGOs are eligible if the proposed projects are to be implemented in cooperation with eligible States parties or NPMs.

25  Until the end of 2015, the Fund had supported

a total of 28 projects with a total amount of $ 801,197.85 in eight States across three regions, including the training of more than 1,300 people in torture prevention techniques and methodology, in particular staff members of national preventive mechanisms, members of the judiciary, law enforcement and penitentiary officers, medical personnel, social workers and members of civil society organizations.35

26  The projects supported by the Fund so far included legislative and policy changes (eg the adoption of a revised Code of Criminal Procedure in Benin, a Prison Act in Honduras, and a law prohibiting abusive body search for persons deprived of their liberty in Brazil), institutional changes (such as the development of a registry of detainees in Paraguay and an improved form for medical and legal examination of torture and ill-treatment in hospitals in the Maldives), as well as changes in peoples’ lives (eg some detainees held without justification could have been released). The Fund’s main focus, however, remains the support for NPMs.

Kerstin Buchinger

Footnotes:

1  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.

2  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 (1996) UN Doc E/CN.4/1996/28, Annex I.

3  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, Annex I.

4  E/CN.4/2001/WG.11/CRP.1.

5  E/CN.4/2001/WG.11/CRP.2.

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 (1992) UN Doc E/CN.4/1993/28, paras 104ff.

7  E/CN.4/1996/28 (n 2) para 85.

8  ibid, para 86.

9  ibid, para 96. See above para 3.

10  ibid, para 97.

11  ibid, para 98.

12  ibid, para 99.

13  ibid, para 100.

14  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1997) UN Doc E/CN.4/1998/42, paras 98ff.

15  ibid, para 95.

16  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1997) UN Doc E/CN.4/1998/42, para 52. See also E/CN.4/2002/WG.11/CRP.1.

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

18  See above para 2.

19  See above 2.2.

20  cf eg art 21(1) of the Mexican Draft: see above para 5.

21  cf eg Art 16(1) of the 1996 draft, Art 17(1) of the 1999 draft, or Art 18 of the EU Draft. See above 2.1.

22  See above Art 13 OP, 3.1.

23  See above Art 11 OP, 3.

24  See also eg AI, ‘Amnesty International’s 12-Point Programme for the Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment by Agents of the State’ amnesty.org (2005) <https://www.amnesty.org/download/Documents/80000/act400012005en.pdf> accessed on 25 November 2017.

25  See the Secretary-General’s Bulletin (9 May 2003) UN Doc ST/SGB/2003/7.

26  The first call for applications was launched in November 2011 and the first grants were awarded during 2012.

28  ibid, para 26.

31  ibid, para 32.

33  SPT, ‘Decision on Establishing a Working Group to Strengthen and Facilitate the Work of the Special Fund Established by the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2016) UN Doc CAT/OP/28/2.

34  Human Rights Council, ‘Special Fund Established by the Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2015) UN Doc A/HRC/31/22, para 20.

35  ibid, para 12.