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Appendices, Appendix B Texts relating to the Optional Protocol

Manfred Nowak, Moritz Birk, Giuliana Monina

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 26 November 2021

(p. 1185) Appendix B  Texts relating to the Optional Protocol

Appendix b.1  Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Adopted and opened for signature, ratification and accession by General Assembly Resolution 57/199 of 18 December 2002

Entered into force on 22 June 2006, in accordance to Article 28(1)

Preamble

The States Parties to the present Protocol,

Reaffirming that torture and other cruel, inhuman or degrading treatment or punishment are prohibited and constitute serious violations of human rights,

Convinced that further measures are necessary to achieve the purposes of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Convention) and to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment,

Recalling that articles 2 and 16 of the Convention oblige each State Party to take effective measures to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment in any territory under its jurisdiction,

Recognizing that States have the primary responsibility for implementing those articles, that strengthening the protection of people deprived of their liberty and the full respect for their human rights is a common responsibility shared by all and that international implementing bodies complement and strengthen national measures,

Recalling that the effective prevention of torture and other cruel, inhuman or degrading treatment or punishment requires education and a combination of various legislative, administrative, judicial and other measures,

Recalling also that the World Conference on Human Rights firmly declared that efforts to eradicate torture should first and foremost be concentrated on prevention and called for the adoption of an optional protocol to the Convention, intended to establish a preventive system of regular visits to places of detention,

Convinced that the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment can be strengthened by non-judicial means of a preventive nature, based on regular visits to places of detention,

Have agreed as follows:

(p. 1186) Part I

General Principles

Article 1

The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

Article 2

  1. 1.  A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture (hereinafter referred to as the Subcommittee on Prevention) shall be established and shall carry out the functions laid down in the present Protocol.

  2. 2.  The Subcommittee on Prevention shall carry out its work within the framework of the Charter of the United Nations and shall be guided by the purposes and principles thereof, as well as the norms of the United Nations concerning the treatment of people deprived of their liberty.

  3. 3.  Equally, the Subcommittee on Prevention shall be guided by the principles of confidentiality, impartiality, non-selectivity, universality and objectivity.

  4. 4.  The Subcommittee on Prevention and the States Parties shall cooperate in the implementation of the present Protocol.

Article 3

Each State Party shall set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as the national preventive mechanism).

Article 4

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

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

Part II

Subcommittee on Prevention

Article 5

  1. 1.  The Subcommittee on Prevention shall consist of ten members. After the fiftieth ratification of or accession to the present Protocol, the number of the members of the Subcommittee on Prevention shall increase to twenty-five.

  2. 2.  The members of the Subcommittee on Prevention shall be chosen from among persons of high moral character, having proven professional experience in the field of the administration of (p. 1187) justice, in particular criminal law, prison or police administration, or in the various fields relevant to the treatment of persons deprived of their liberty.

  3. 3.  In the composition of the Subcommittee on Prevention due consideration shall be given to equitable geographic distribution and to the representation of different forms of civilization and legal systems of the States Parties.

  4. 4.  In this composition consideration shall also be given to balanced gender representation on the basis of the principles of equality and non-discrimination.

  5. 5.  No two members of the Subcommittee on Prevention may be nationals of the same State.

  6. 6.  The members of the Subcommittee on Prevention shall serve in their individual capacity, shall be independent and impartial and shall be available to serve the Subcommittee on Prevention efficiently.

Article 6

  1. 1.  Each State Party may nominate, in accordance with paragraph 2 of the present article, up to two candidates possessing the qualifications and meeting the requirements set out in article 5, and in doing so shall provide detailed information on the qualifications of the nominees.

  2. 2. 

    1. (a)  The nominees shall have the nationality of a State Party to the present Protocol;

    2. (b)  At least one of the two candidates shall have the nationality of the nominating State Party;

    3. (c)  No more than two nationals of a State Party shall be nominated;

    4. (d)  Before a State Party nominates a national of another State Party, it shall seek and obtain the consent of that State Party.

  3. 3.  At least five months before the date of the meeting of the States Parties during which the elections will be held, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall submit a list, in alphabetical order, of all persons thus nominated, indicating the States Parties that have nominated them.

Article 7

  1. 1.  The members of the Subcommittee on Prevention shall be elected in the following manner:

    1. (a)  Primary consideration shall be given to the fulfilment of the requirements and criteria of article 5 of the present Protocol;

    2. (b)  The initial election shall be held no later than six months after the entry into force of the present Protocol;

    3. (c)  The States Parties shall elect the members of the Subcommittee on Prevention by secret ballot;

    4. (d)  Elections of the members of the Subcommittee on Prevention shall be held at biennial meetings of the States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Subcommittee on Prevention shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of the States Parties present and voting.

  2. 2.  If during the election process two nationals of a State Party have become eligible to serve as members of the Subcommittee on Prevention, the candidate receiving the higher number of votes shall serve as the member of the Subcommittee on Prevention. Where nationals have received the same number of votes, the following procedure applies:

    1. (a)  Where only one has been nominated by the State Party of which he or she is a national, that national shall serve as the member of the Subcommittee on Prevention;

    2. (b)  Where both candidates have been nominated by the State Party of which they are nationals, a separate vote by secret ballot shall be held to determine which national shall become the member;

    3. (p. 1188) (c)  Where neither candidate has been nominated by the State Party of which he or she is a national, a separate vote by secret ballot shall be held to determine which candidate shall be the member.

Article 8

If a member of the Subcommittee on Prevention dies or resigns, or for any cause can no longer perform his or her duties, the State Party that nominated the member shall nominate another eligible person possessing the qualifications and meeting the requirements set out in article 5, taking into account the need for a proper balance among the various fields of competence, to serve until the next meeting of the States Parties, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

Article 9

The members of the Subcommittee on Prevention shall be elected for a term of four years. They shall be eligible for re-election once if renominated. The term of half the members elected at the first election shall expire at the end of two years; immediately after the first election the names of those members shall be chosen by lot by the Chairman of the meeting referred to in article 7, paragraph 1 (d).

Article 10

  1. 1.  The Subcommittee on Prevention shall elect its officers for a term of two years. They may be re-elected.

  2. 2.  The Subcommittee on Prevention shall establish its own rules of procedure. These rules shall provide, inter alia, that:

    1. (a)  Half the members plus one shall constitute a quorum;

    2. (b)  Decisions of the Subcommittee on Prevention shall be made by a majority vote of the members present;

    3. (c)  The Subcommittee on Prevention shall meet in camera.

  3. 3.  The Secretary-General of the United Nations shall convene the initial meeting of the Subcommittee on Prevention. After its initial meeting, the Subcommittee on Prevention shall meet at such times as shall be provided by its rules of procedure. The Subcommittee on Prevention and the Committee against Torture shall hold their sessions simultaneously at least once a year.

Part III

Mandate of the Subcommittee on Prevention

Article 11

  1. 1.  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. (p. 1189) (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.

Article 12

In order to enable the Subcommittee on Prevention to comply with its mandate as laid down in article 11, the States Parties undertake:

  1. (a)  To receive the Subcommittee on Prevention in their territory and grant it access to the places of detention as defined in article 4 of the present Protocol;

  2. (b)  To provide all relevant information the Subcommittee on Prevention may request to evaluate the needs and measures that should be adopted to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

  3. (c)  To encourage and facilitate contacts between the Subcommittee on Prevention and the national preventive mechanisms;

  4. (d)  To examine the recommendations of the Subcommittee on Prevention and enter into dialogue with it on possible implementation measures.

Article 13

  1. 1.  The Subcommittee on Prevention shall establish, at first by lot, a programme of regular visits to the States Parties in order to fulfil its mandate as established in article 11.

  2. 2.  After consultations, the Subcommittee on Prevention shall notify the States Parties of its programme in order that they may, without delay, make the necessary practical arrangements for the visits to be conducted.

  3. 3.  The visits shall be conducted by at least two members of the Subcommittee on Prevention. These members may be accompanied, if needed, by experts of demonstrated professional experience and knowledge in the fields covered by the present Protocol who shall be selected from a roster of experts prepared on the basis of proposals made by the States Parties, the Office of the United Nations High Commissioner for Human Rights and the United Nations Centre for International Crime Prevention. In preparing the roster, the States Parties concerned shall propose no more than five national experts. The State Party concerned may oppose the inclusion of a specific expert in the visit, whereupon the Subcommittee on Prevention shall propose another expert.

  4. 4.  If the Subcommittee on Prevention considers it appropriate, it may propose a short follow-up visit after a regular visit.

Article 14

  1. 1.  In order to enable the Subcommittee on Prevention to fulfil its mandate, the States Parties to the present Protocol undertake to grant it:

    1. (a)  Unrestricted access to all information concerning the number of persons deprived of their liberty in places of detention as defined in article 4, as well as the number of places and their location;

    2. (p. 1190) (b)  Unrestricted access to all information referring to the treatment of those persons as well as their conditions of detention;

    3. (c)  Subject to paragraph 2 below, unrestricted access to all places of detention and their installations and facilities;

    4. (d)  The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the Subcommittee on Prevention believes may supply relevant information;

    5. (e)  The liberty to choose the places it wants to visit and the persons it wants to interview.

  2. 2.  Objection to a visit to a particular place of detention may be made only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit. The existence of a declared state of emergency as such shall not be invoked by a State Party as a reason to object to a visit.

Article 15

No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the Subcommittee on Prevention or to its delegates any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

Article 16

  1. 1.  The Subcommittee on Prevention shall communicate its recommendations and observations confidentially to the State Party and, if relevant, to the national preventive mechanism.

  2. 2.  The Subcommittee on Prevention shall publish its report, together with any comments of the State Party concerned, whenever requested to do so by that State Party. If the State Party makes part of the report public, the Subcommittee on Prevention may publish the report in whole or in part. However, no personal data shall be published without the express consent of the person concerned.

  3. 3.  The Subcommittee on Prevention shall present a public annual report on its activities to the Committee against Torture.

  4. 4.  If the State Party refuses to cooperate with the Subcommittee on Prevention according to articles 12 and 14, or to take steps to improve the situation in the light of the recommendations of the Subcommittee on Prevention, the Committee against Torture may, at the request of the Subcommittee on Prevention, decide, by a majority of its members, after the State Party has had an opportunity to make its views known, to make a public statement on the matter or to publish the report of the Subcommittee on Prevention.

Part IV

National Preventive Mechanisms

Article 17

Each State Party shall maintain, designate or establish, at the latest one year after the entry into force of the present Protocol or of its ratification or accession, one or several independent national preventive mechanisms for the prevention of torture at the domestic level. Mechanisms established by decentralized units may be designated as national preventive mechanisms for the purposes of the present Protocol if they are in conformity with its provisions.

(p. 1191) Article 18

  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 mechanism 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.

Article 19

The national preventive mechanisms shall be granted at a minimum the power:

  1. (a)  To regularly examine the treatment of the persons deprived of their liberty in places of detention as defined in article 4, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment;

  2. (b)  To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;

  3. (c)  To submit proposals and observations concerning existing or draft legislation.

Article 20

In order to enable the national preventive mechanisms to fulfil their mandate, the States Parties to the present Protocol undertake to grant them:

  1. (a)  Access to all information concerning the number of persons deprived of their liberty in places of detention as defined in article 4, as well as the number of places and their location;

  2. (b)  Access to all information referring to the treatment of those persons as well as their conditions of detention;

  3. (c)  Access to all places of detention and their installations and facilities;

  4. (d)  The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the national preventive mechanism believes may supply relevant information;

  5. (e)  The liberty to choose the places they want to visit and the persons they want to interview;

  6. (f)  The right to have contacts with the Subcommittee on Prevention, to send it information and to meet with it.

Article 21

  1. 1.  No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the national preventive mechanism any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

  2. 2.  Confidential information collected by the national preventive mechanism shall be privileged. No personal data shall be published without the express consent of the person concerned.

(p. 1192) Article 22

The competent authorities of the State Party concerned shall examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures.

Article 23

The States Parties to the present Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms.

Part V

Declaration

Article 24

  1. 1.  Upon ratification, States Parties may make a declaration postponing the implementation of their obligations under either part III or part IV of the present Protocol.

  2. 2.  This postponement shall be valid for a maximum of three years. After due representations made by the State Party and after consultation with the Subcommittee on Prevention, the Committee against Torture may extend that period for an additional two years.

Part VI

Financial provisions

Article 25

  1. 1.  The expenditure incurred by the Subcommittee on Prevention in the implementation of the present Protocol shall be borne by the United Nations.

  2. 2.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Subcommittee on Prevention under the present Protocol.

Article 26

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

Part VII

Final Provisions

Article 27

  1. 1.  The present Protocol is open for signature by any State that has signed the Convention.

  2. (p. 1193) 2.  The present Protocol is subject to ratification by any State that has ratified or acceded to the Convention. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

  3. 3.  The present Protocol shall be open to accession by any State that has ratified or acceded to the Convention.

  4. 4.  Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

  5. 5.  The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Article 28

  1. 1.  The present Protocol shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

  2. 2.  For each State ratifying the present Protocol or acceding to it after the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession, the present Protocol shall enter into force on the thirtieth day after the date of deposit of its own instrument of ratification or accession.

Article 29

The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

Article 30

No reservations shall be made to the present Protocol.

Article 31

The provisions of the present Protocol shall not affect the obligations of States Parties under any regional convention instituting a system of visits to places of detention. The Subcommittee on Prevention and the bodies established under such regional conventions are encouraged to consult and cooperate with a view to avoiding duplication and promoting effectively the objectives of the present Protocol.

Article 32

The provisions of the present Protocol shall not affect the obligations of States Parties to the four Geneva Conventions of 12 August 1949 and the Additional Protocols thereto of 8 June 1977, nor the opportunity available to 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.

Article 33

  1. 1.  Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties to the present Protocol and the Convention. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

  2. 2.  Such a denunciation shall not have the effect of releasing the St ate Party from its obligations under the present Protocol in regard to any act or situation that may occur prior to the date on which the denunciation becomes effective, or to the actions that the Subcommittee on Prevention has decided or may decide to take with respect to the State Party concerned, nor (p. 1194) shall denunciation prejudice in any way the continued consideration of any matter already under consideration by the Subcommittee on Prevention prior to the date on which the denunciation becomes effective.

  3. 3.  Following the date on which the denunciation of the State Party becomes effective, the Subcommittee on Prevention shall not commence consideration of any new matter regarding that State.

Article 34

  1. 1.  Any State Party to the present Protocol may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to the present Protocol with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting at the conference shall be submitted by the Secretary-General of the United Nations to all States Parties for acceptance.

  2. 2.  An amendment adopted in accordance with paragraph 1 of the present article shall come into force when it has been accepted by a two-thirds majority of the States Parties to the present Protocol in accordance with their respective constitutional processes.

  3. 3.  When amendments come into force, they shall be binding on those States Parties that have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendment that they have accepted.

Article 35

Members of the Subcommittee on Prevention and of the national preventive mechanisms shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions. Members of the Subcommittee on Prevention shall be accorded the privileges and immunities specified in section 22 of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946, subject to the provisions of section 23 of that Convention.

Article 36

When visiting a State Party, the members of the Subcommittee on Prevention shall, without prejudice to the provisions and purposes of the present Protocol and such privileges and immunities as they may enjoy:

  1. (a)  Respect the laws and regulations of the visited State;

  2. (b)  Refrain from any action or activity incompatible with the impartial and international nature of their duties.

Article 37

  1. 1.  The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

  2. 2.  The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States.

(p. 1195) Appendix B.2  Selected Draft Optional Protocol Texts

Draft Optional Protocol to the Draft International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Original Costa Rica Draft)

(6 March 1980)1

Preamble

The States Parties to the present Protocol,

Considering that in order further to achieve the purpose of the International Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Convention) and the implementation of its provisions, it would be appropriate to establish an independent International Committee authorised to arrange visits to places of detention of all kinds under the jurisdiction of the States Parties to the present Protocol and to report thereon with recommendations to the governments concerned,

Have agreed as follows:

Article 1

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

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

Article 14

  1. 1.  The present control is open for signature by any State which has signed the Convention.

  2. 2.  The present Protocol is subject to ratification or accession by any State which has ratified or acceded to the Convention. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.

  3. 3.  The Secretary-General of the United Nations shall inform all States which have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

(p. 1196) Article 15

  1. 1.  Subject to the entry into force of the Convention, the present Protocol shall enter into force three months after the deposit of the fifth instrument of ratification or accession.

  2. 2.  For each State ratifying the present Protocol or acceding to it after the deposit of the fifth instrument of ratification or instrument of accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

Article 16

Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall inform the other State Parties and the Committee. Denunciation shall take effect one year after the date of receipt of the notification. Denunciation shall not affect the execution of measures authorised prior to it.

Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Revised Costa Rica Draft)

(5 January 1991)2

Preamble

The States Parties to the present Protocol,

Considering that in order to further achieve the purpose of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Convention) it is appropriate to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment, by resorting to non-judicial means of a preventive character based on visits,

Have agreed as follows:

Part I

Article 1

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

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

(p. 1197) Article 2

The Committee against Torture shall establish a Subcommittee for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Subcommittee); the Subcommittee shall be responsible for organizing missions to the States Parties to the present Protocol for the purposes stated in article 1.

Article 3

In the application of this Protocol, the Subcommittee and the competent national authorities of the State Party concerned shall cooperate with each other.

Part II

Article 4

  1. 1.  The Subcommittee shall consist of a maximum of 25 members. While there are less than 25 States Parties to the present Protocol, the number of members of the Subcommittee shall be equal to that of the States Parties.

  2. 2.  The members of the Subcommittee shall be chosen from among persons of high moral character, having proven professional experience in the field of 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 the international protection of human rights.

  3. 3.  No two members of the Subcommittee may be nationals of the same State.

  4. 4.  The members of the Subcommittee shall serve in their individual capacity, shall be independent and impartial and shall be available to serve the Subcommittee effectively.

Article 5

  1. 1.  The members of the Subcommittee shall be elected by the Committee against Torture by an absolute majority of votes from a list of persons possessing the qualifications prescribed in article 4 and nominated by the States Parties to the present Protocol.

  2. 2.  Within three months of the entry into force of the present Protocol, the accession of a new member or a vacancy, each State Party shall nominate three persons, at least two of whom shall possess its nationality. They shall be indicated in alphabetical order.

  3. 3.  Subject to article 4, paragraph 1, the Committee against Torture shall hold elections whenever there is an accession to the present Protocol or a vacancy in the Subcommittee.

  4. 4.  A member shall be eligible for re-election if renominated.

Article 6

  1. 1.  The members of the Subcommittee shall be elected for a period of four years. However, among the members elected at the first election, the terms of five members, to be chosen by lot, shall expire at the end of two years.

  2. 2.  In the election of the members of the Subcommittee, consideration shall be given to equitable geographical distribution of membership, to a proper balance among the various fields of competence referred to in article 4, paragraph 2, and to the representation of different traditions and legal systems.

Article 7

  1. 1.  The Subcommittee shall meet for a regular session at least twice a year; for special sessions at the initiative of its Chairman or at the request of not less than one third of its members.

  2. (p. 1198) 2.  The Subcommittee shall meet in camera. Half of the members shall constitute a quorum. The decisions of the Subcommittee shall be taken by a majority of the members present, subject to article 14, paragraph 2.

  3. 3.  The Subcommittee shall draw up its own rules of procedure.

  4. 4.  The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee against Torture and the Subcommittee under this Protocol.

Part III

Article 8

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

  2. 2.  The Subcommittee shall postpone any such mission if 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.

Article 10

  1. 1.  As a general rule, the missions shall be carried out by at least two members of the Subcommittee, assisted by experts and interpreters if necessary.

  2. 2.  No member of a delegation shall be a national of the State to be visited.

Article 11

  1. 1.  Experts shall act on the instructions and under the authority of the Subcommittee. They shall have particular knowledge and experience in the areas covered by this Protocol and shall be bound by the same duties of independence, impartiality and availability as the members of the Subcommittee.

  2. 2.  A State Party may exceptionally and for reasons given confidentially declare that an expert or other person assisting the Subcommittee may not take part in a mission to its territory.

(p. 1199) Article 12

  1. 1.  The Subcommittee shall notify the Government of the State Party concerned of its intention to organize a mission. After such notification, it may at any time visit any place referred to in article 1, paragraph 1.

  2. 2.  The State Party within whose jurisdiction a mission is to take place or is being carried out shall provide the delegation with all the facilities necessary for the proper fulfilment of their tasks and shall not obstruct by any means or measures the programme of visits or any other activities which the delegation is carrying out specifically for or in relation to the visits. In particular, the State Party shall provide the delegation with the following facilities:

    1. (a)  access to its territory and the right to travel without restriction;

    2. (b)  full information on the places referred to in article 1, paragraph 1, including information requested about specific persons;

    3. (c)  unlimited access to any place referred to in article 1, paragraph 1, including the right to move inside such places without restriction;

    4. (d)  assistance in gaining access to places where the delegation has reason to believe that persons may be deprived of their liberty;

    5. (e)  producing any person deprived of his liberty whom the delegation wishes to interview, at the request of the delegation and at a convenient location;

    6. (f)  other information available to the State Party which is necessary for the delegation to carry out its task.

  3. 3.  Members of the delegation may interview in private, inside or outside his place of detention, without witnesses, and for the time they deem necessary, any person deprived of his liberty under the terms of article 1. They may also communicate without restriction with relatives, friends, lawyers and doctors of persons who are or have been deprived of their liberty, and with any other person or organization that they think may be able to provide them with relevant information for their mission. In seeking such information, the delegation shall have regard to applicable rules of national law relating to data protection and principles of medical ethics.

  4. 4.  No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the Subcommittee or to the delegates any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

  5. 5.  In urgent cases the delegation shall at once submit observations and recommendations either of general or specific nature to the competent authorities of the State Party concerned.

Article 13

  1. 1.  In the context of a mission, the competent authorities of the State Party concerned may make representations to the Subcommittee or its delegation against a particular visit if urgent and compelling reasons relating to serious disorder in the particular place to be visited temporarily prevent the carrying out of the visit.

  2. 2.  Following any such representation, the Subcommittee and the State Party shall immediately enter into consultations in order to clarify the situation and seek agreement on arrangements to enable the Subcommittee to exercise its functions expeditiously. Such arrangements may include the transfer to another place of any person whom the Subcommittee proposed to visit. Until the visit takes place, the State Party shall provide information to the Subcommittee about any person concerned.

Article 14

  1. 1.  After each mission, the Subcommittee shall draw up a report on the facts found during the mission, taking account of any observations which may have been submitted by the State Party (p. 1200) concerned. It shall transmit to the latter its report containing any recommendations it considers necessary and may consult with the State Party with a view to suggesting, if necessary, improvements in the protection of persons deprived of their liberty.

  2. 2.  If the State Party fails to cooperate or refuses to improve the situation in the light of the Subcommittee’s recommendations, the Committee against Torture may at the request of the Subcommittee decide by a majority of its members, after the State Party has had an opportunity to make known its views, to make a public statement on the matter or to publish the Subcommittee’s report.

  3. 3.  The Subcommittee shall publish its report, together with any comments of the State Party concerned, whenever requested to do so by that State Party. If the State Party makes part of the report public, the Subcommittee may publish the report in whole or in part. However, no personal data shall be published without the express consent of the person concerned.

  4. 4.  In all other respects, the information gathered by the Subcommittee and its delegation in relation to a mission, its report and its consultation with the State Party concerned shall remain confidential. Members of the Committee against Torture, the Subcommittee, its delegations and their staff are required to maintain confidentiality during and after their terms of office.

Article 15

  1. 1.  The Committee against Torture shall examine the reports and recommendations which may be submitted to it by the Subcommittee. It shall keep them confidential as long as no public statement in accordance with article 14, paragraph 2, has been made or as long as they have not become public in accordance with article 14, paragraph 3, of this Protocol.

  2. 2.  Subject to the rules of confidentiality, the Subcommittee shall every year submit a general annual report on its activities to the Committee against Torture, which shall include information on the activities under this Protocol in its annual report to the General Assembly of the United Nations in accordance with article 24 of the Convention.

Part IV

Article 16

The expenditures 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].

Article 17

  1. 1.  The present Protocol is open for signature by any State which has signed the Convention.

  2. 2.  The present Protocol is subject to ratification or open to accession by any State which has ratified or acceded to the Convention. Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations.

  3. (p. 1201) 3.  The Secretary-General of the United Nations shall inform all States which have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Article 18

  1. 1.  The present Protocol shall enter into force three months after the deposit of the tenth instrument of ratification or accession.

  2. 2.  For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or instrument of accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.

  3. 3.  No reservations may be made in respect of the provisions of this Protocol.

Article 19

Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties, the Committee against Torture and the Subcommittee. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

Article 20

The members of the Subcommittee and of its delegations shall be entitled to the facilities, privileges and immunities referred to in article 23 of the Convention.

Article 21

  1. 1.  The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

  2. 2.  The Secretary-General of the United Nations shall transmit certified copies of this Protocol to all States.

Alternative preliminary draft optional protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, submitted by the delegation of Mexico with the support of the Latin American Group (GRULAC) at the ninth session of the working group in 2001 (Mexican Draft)

(13 February 2001)3

Preamble

The States Parties to the present Optional Protocol,

Recognizing that torture and other, cruel, inhuman or degrading treatment or punishment are prohibited,

Recalling that articles 2 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment require each State Party to take effective measures to prevent (p. 1202) acts of torture and other acts of cruel, inhuman or degrading treatment or punishment in any territory under its jurisdiction,

Further recalling that the effective prevention of torture and other cruel, inhuman or degrading treatment or punishment requires a combination of legislative, administrative, judicial and other measures,

Recognizing that States have the primary responsibility for implementing international law and the relevant international standards, that strengthening the protection of and full respect for human rights is a common responsibility shared by all and that international mechanisms are complementary to national measures,

Convinced that the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment may be strengthened by non-judicial means of a preventive character based on visits to places of detention,

Desiring to undertake an international commitment to make the prevention of torture and other cruel, inhuman or degrading treatment or punishment more effective,

Have agreed as follows,

Part I

Article 1

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

Article 2 (former art. 2, amended)

There shall be established a Subcommittee for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture which shall carry out the functions laid down in the present Protocol (hereinafter referred to as the Subcommittee):

  1. 1.  The Subcommittee shall be responsible for supporting and supervising the work carried out by national mechanisms in accordance with the provisions of the present Protocol;

  2. 2.  The Subcommittee shall carry out its work within the framework of the Charter of the United Nations and shall be guided by the purposes and principles enunciated therein;

  3. 3.  The Subcommittee shall also be guided by the principles of confidentiality, impartiality, universality and objectivity.

Part II

Article 3

Each State Party shall establish a national mechanism at the highest possible level within one year of the entry into force of, or of its accession to, the present Protocol.

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. 1203) 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.

Article 5

National mechanisms shall have the following powers, as a minimum:

  1. (a)  To examine the situation of persons deprived of their liberty with a view to strengthening, if necessary, their protection from torture and other cruel, inhuman or degrading treatment or punishment;

  2. (b)  To make recommendations to the competent authorities with a view to improving the treatment and conditions of persons deprived of their liberty and preventing torture and other cruel, inhuman or degrading treatment or punishment;

  3. (c)  To propose or comment on draft or existing legislation on this question;

  4. (d)  To take any initiatives that would help States Parties fulfil their obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and other relevant international instruments.

Article 6

  1. 1.  In order to assess the situation of persons deprived of their liberty and to make the relevant recommendations, national prevention mechanisms shall carry out visits to places where persons are deprived of their liberty; they shall have:

    1. (a)  Unrestricted access to all relevant information concerning the number of persons deprived of their liberty pursuant to an order of a public authority or at its instigation or with its consent or acquiescence, as well as the number of places and their location;

    2. (b)  Unrestricted access to all information relevant to treatment and conditions of detention;

    3. (c)  Unrestricted access to all places where persons are deprived of their liberty;

    4. (d)  Unrestricted access to all premises where persons are deprived of their liberty;

    5. (e)  Freedom to interview persons deprived of their liberty, without witnesses, personally or with the assistance of an interpreter, if required, as well as of any personnel deemed necessary;

    6. (f)  Freedom to select the places they wish to visit;

    7. (g)  Unrestricted freedom to contact, inform and meet with the Subcommittee.

  2. 2.  Such visits may not be prohibited except in cases of absolute military necessity or serious disturbances in the place to be visited and then only as an exceptional and temporary measure. The organization, frequency and duration of such visits may not be restricted.

  3. 3.  No person or organization may be penalized or otherwise harmed for having provided relevant information to a national mechanism.

Article 7

  1. 1.  National mechanisms shall:

    1. (a)  Inform the competent authorities of their observations and make recommendations to them;

    2. (b)  Regularly inform the Subcommittee of their observations and recommendations.

  2. 2.  No personal data shall be made public without the prior consent of the person concerned, subject to liability.

(p. 1204) Article 8

Each State Party to the present Protocol undertakes to implement the recommendations made by its national mechanism.

Part III

Article 9 (former art. 4)

  1. 1.  The Subcommittee shall be composed of 10 members. After the fiftieth accession to the present Protocol, the number of members of the Subcommittee shall increase to 25.

  2. 2.  The members of the Subcommittee shall be chosen from among persons of high moral character having proven professional experience in the field of 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.

  3. 3.  No two members of the Subcommittee may be nationals of the same State.

  4. 4.  The members of the Subcommittee shall serve in their individual capacity, shall be independent and impartial and shall be available to serve the Subcommittee effectively.

Article 10 (former art. 5)

  1. 1.  Each State Party may nominate, in accordance with paragraph 2, up to two candidates possessing the qualifications and meeting the requirements set out in article 9, and in doing so shall provide detailed information on the qualifications of the nominees.

  2. 2. 

    1. (a)  Nominees of the Subcommittee shall have the nationality of a State Party to the present Protocol;

    2. (b)  At least one of the two candidates shall have the nationality of the nominating State Party;

    3. (c)  Not more than two nationals of a State Party shall be nominated;

    4. (d)  Before a State Party nominates a national of another State Party, it shall seek and obtain the written consent of that State Party.

  3. 3.  At least five months before the date of the meeting of the States Parties during which the elections will be held, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall submit a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them.

Article 11 (former art. 6)

  1. 1.  The members of the Subcommittee shall be elected in the following manner:

    1. (a)  Elections of the members of the Subcommittee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Subcommittee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of the States Parties present and voting;

    2. (b)  The initial election shall be held no later than six months after the date of the entry into force of the present Protocol;

    3. (c)  The States Parties shall elect the members of the Subcommittee by secret ballot;

    4. (d)  In the election of the members of the Subcommittee, primary consideration shall be given to the fulfilment of the requirements and criteria of article 9. Furthermore, due consideration shall be given to the equitable geographical distribution of membership and to the representation of the different forms of civilization and legal systems of the States Parties.

  2. (p. 1205) 2.  Consideration shall also be given to the balanced representation of women and men on the basis of the principles of equality and non-discrimination.

  3. 3.  If, during the election process, two nationals of a State Party have become eligible to serve as members of the Subcommittee, the candidate receiving the higher number of votes shall serve as the member of the Subcommittee.