8 The obligations under Article 36 are directly related to the privileges and immunities accorded to members of the SPT. While such privileges and immunities apply to the entire period of serving as UN experts on the SPT, ie also in their home countries and third countries, the duties under Article 36 only apply to country missions in accordance with Articles 11 to 16 OP. In fact, the issue of SPT members having to respect domestic laws and regulations came up during the discussions on Article 12 OP.12
9 That members of the SPT, as stipulated in Article 36(b) OP, shall refrain from any action or activity incompatible with the impartial and international nature of their duties is self-evident and follows from their duty under Article 2 to be guided by the UN Charter and the principles of impartiality and objectivity.13
10 More controversial, however, is their obligation under Article 36(a) OP to ‘[r]espect the laws and regulations of the visited State’. Again, it is self-evident that the SPT shall not commit crimes in contravention of domestic criminal law and shall respect particular religious or traditional rules and customs of the country concerned. Their privileges and immunities are only of a functional nature and are not granted for the ‘personal benefits’ of the SPT members.14
11 A strict interpretation of Article 36(a) OP might, however, also lead to the result that the members of the SPT, during a country mission, must respect all provisions of prison rules, codes of criminal procedure, and similar laws to the same extent as the public in general. For example, all countries in the world have enacted specific legal provisions restricting access to places of detention by providing visiting hours for family members and other persons permitted to visit detainees, and even legal counsel may be prevented from conducting private interviews with their clients while in pre-trial detention. In military facilities, the taking of photographs is usually restricted or prohibited for the purpose of protecting military secrets, but at the same time it is part of the professional conduct of forensic examination of detainees that the forensic expert takes photos of the signs alleged to have been inflicted by torture. The same holds true for electronic equipment and other tools which the members of the delegation need to bring into a detention facility in order to carry out their work in a professional manner.
12 A reasonable interpretation of all relevant provisions of the Protocol, including the respective obligations of States parties to grant the SPT unrestricted access to all places of detention, their installations and facilities, as well as all relevant documents, to grant the delegation the factual opportunity to have private interviews with detainees, and to respect all privileges and immunities as UN experts on mission, as well as the obligations of the SPT members to comply with the principles of confidentiality, impartiality, objectivity, and professional conduct respectful of the general laws, traditions, and rules of the country to be visited, must strike a fair balance between legitimate interests of the States parties as well as the legitimate interests of the SPT to carry out its mandate of visiting places of detention in a professional manner in accordance with its mandate as laid down in the Protocol.15 Guided by the overall principle of cooperation between States parties and the SPT under Article 2(4) OP,16 States parties shall refrain from all actions aimed at obstructing the professional work of the SPT and, in particular, must not misuse prison (p. 1030) laws and regulations as a pretext for unduly restricting the freedom of the SPT to visit all places of detention and to communicate freely with all persons it wants to interview. At the same time, the SPT members must not misuse their specific rights, privileges, and immunities under this Protocol for their personal benefit and shall act respectfully towards all persons they interact with, above all detainees, witnesses, and staff of places of detention. Most importantly, they shall always respect the privacy of all interview partners, their right to confidentiality and data protection, as well as their right, on the basis of the principle of informed consent, to refuse to speak with the delegation or to provide certain information to the delegation.
13 The rights, privileges, and immunities of the members of the SPT are similar to other bodies visiting places of detention and conducting private interviews with detainees, above all the CPT and the Special Rapporteur on Torture (SRT).17 During the preparations for his visit to the Russian Federation in autumn 2006, the SRT was informed by the Government of Russia that certain elements of his terms of reference for carrying out visits to detention facilities would contravene Russian Federation law, particularly with respect to carrying out unannounced visits, and holding private interviews with detainees. Since these issues could not be resolved prior to the visit, he had to announce that he was not in a position to proceed as planned and the visit had to be postponed.18 Generally, the rights to carry out unannounced visits and to conduct private interviews with detainees are fundamental to any international and national body concerned with the investigation or prevention of torture and ill-treatment, and States should refrain from obstructing the work of such mechanisms by invoking national legislation in this regard. Missions carried out by any of the relevant mechanisms under such restrictions, such as restricted access to detainees, would serve to undermine the credibility and objectivity of their findings as well as their impartiality and independence.19