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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part I General Principles, Art.1 System of Preventive Visits to Places of Detention

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, 2022. All Rights Reserved.date: 21 May 2022

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

(p. 715) Article 1  System of Preventive Visits to Places of Detention

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.

1.  Introduction

1  Article 1 OP defines the objective of the Protocol by highlighting its main features: first, the OP creates a two-pillar system by visits being carried out by both international and national mechanisms. Second, the obligation of States parties to permit regular visits to places of detention is established. Third, the OP is based on the principle of cooperation between the State party, the SPT, and the NPMs. Fourth, prevention of torture and other ill-treatment is defined as the aim of the visits.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

2  Original Costa Rica Draft (6 March 1980)1

Article 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.(p. 716)

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.

3  Revised Costa Rica Draft (15 January 1991)2

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 form other cruel, inhuman or degrading treatment or punishment in accordance with international standards.

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

Article 1

  1. 1.  A State Party to the present Protocol shall permit visits in accordance with this Protocol to any place in any territory under 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 [provided that full respect is assured for the principles of non-intervention and the sovereignty of States].

  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 [, and [to take] measures for the prevention of] torture and from other cruel, inhuman or degrading treatment or punishment in accordance with applicable international [standards], [instruments], [law].

5  Text of the Articles which Constitute the Basis for Future Work (2 December 1999)4

Article 1

  1. 1.  The objective of this Protocol is to establish a preventive visiting mechanism to examine the treatment of persons [deprived of their liberty] [detained] with a view to recommending means for strengthening, if necessary, the protection of such persons from torture and other cruel, inhuman or degrading treatment or punishment [as defined under international law applicable to the State Party] [and relevant international standards].

  2. 2.  Each State Party agrees to permit visits, [in principle,] in accordance with this Protocol, to [any place] [places of detention] [on any territory] under its jurisdiction [and control] where persons (may, based on reliable information [as determined by a competent and independent judicial authority of the State Party concerned] be deprived or) are [deprived of their liberty] [detained] [including structures intended (p. 717) or used to house or transport such persons] by [or pursuant to an order of] a public authority [or at its instigation or with its consent or acquiescence].

  3. [3.  Nothing in this Protocol will be interpreted as allowing:

    1. (a)  Visits to any civil or military facility that the State considers related to strategic national interest; or

    2. (b)  Interference in the domestic affairs of Member States in a manner which exceeds the provisions of the present Protocol.]

6  Mexican Draft (13 February 2001)5

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.

7  EU Draft (22 February 2001)6

Article 3 (old 1 revised)

  1. 1.  The objective of this Protocol is to establish an international preventive visiting mechanism to examine the treatment of persons deprived of their liberty, with a view to recommending means for strengthening, if necessary, the protection of such persons from torture and other cruel, inhuman or degrading treatment or punishment.

  2. 2.  Each State Party agrees to permit missions by the Sub-Committee to its territory and visits to any place under its jurisdiction and control where persons are or may be deprived of their liberty.

8  US Draft (16 January 2002)7

Article 1

  1. 1.  (a) There shall be established, under the Committee against Torture (hereinafter referred to as the Committee), a Subcommittee on the Prevention of Torture (hereinafter referred to as the Subcommittee on Prevention) which shall carry out the functions hereinafter provided.

    1. (b)  The Subcommittee shall consist of [five] experts of recognized competence in the field of human rights, who shall serve in their personal capacity and shall, under its direction, carry out the functions herein provided.

Each State Party may, in furtherance of articles 2 and 16 of the Convention, establish, maintain or provide for national mechanisms to strengthen, if necessary, the protection of persons deprived of their liberty pursuant to an order of a public authority from torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as national mechanisms).

(p. 718) 2.2  Analysis of Working Group Discussions

9  During the first session of the Working Group, held from 19 to 30 October 1992, it was decided to undertake a review of the draft OP8 from a conceptual perspective. In order to do so, the document was divided into several ‘baskets’ of issues. The first basket, ‘Aims, object, and purpose’, contained the title and preamble of the Protocol as well as its Article 1.9

10  In general, the Working Group wanted to integrate a very simple and clear expression of the basic international obligation that States would have to accept according to the OP, namely to permit visits to any places over which the State exercises either direct power or control and where persons are deprived of their liberty.

11  The main issues raised regarding Article 1(1) during the Working Group discussions at the first session were the following: the scope of States’ obligations; the criteria for carrying out visits; the definition of the term ‘places of detention’; the question of jurisdiction; and the standards of assessment which should be applied.

12  With regard to the scope of States’ obligations, several delegations felt that Article 1 should concentrate on the system of preventive visits as a new and unique mechanism; other important matters should be dealt with in the other provisions. In their opinion, further detail in Article 1 would only diminish the clarity of the central obligation of the Protocol, namely to permit preventive visits.

13  Regarding the criteria for carrying out visits, some delegations found that the phrase ‘in accordance with this Protocol’, as contained in the draft, established imprecise criteria for the system of visits. These delegations suggested further clarifying the terms on which visits would take place. Several other delegations, however, wanted to ensure that the competence of the Subcommittee should be kept as broad as possible.

14  A number of issues were raised regarding the wording of the phrase ‘places of detention’. The draft text covered both places where persons are detained by a public authority, and other places where detention occurs at its instigation or with its consent or acquiescence. The question of the necessary degree of Government involvement in ‘irregular’ detention gave rise to much discussion. Due consideration was given to the meaning of the concept of ‘acquiescence’. In this regard, a reference was made to Article 1 CAT, which specifically refers to ‘the consent or acquiescence of a public official’. Many delegations felt that this definition was too restrictive and that the Protocol’s system should cover more institutions, rather than just those operated by public authorities. A reference was made to a similar provision in the Declaration on the Protection of All Persons from Enforced Disappearance. Many delegations found that as a matter of State responsibility under the OP, there should be a right to visit any place where a person is deprived of liberty by another person, or body, who is either under the direct control of the State, or is subject to such direct or indirect influence by the State that control or authority should be inferred or imputed.

15  Concern was also raised with regard to the notion ‘may be held’, as some delegations had the impression that this indefinite criterion might give rise to difficulties of interpretation and administration.

16  A discussion also came up with regard to the term ‘jurisdiction’ and the more general question on the implementation of the Protocol in federal States. It was pointed (p. 719) out that the national authority in such States might have responsibility over the whole territory, however other levels of Government might also have legislative or administrative responsibilities for places to which the Subcommittee should have access.

17  With regard to Article 1(2) OP, some delegations found that the objective of the visits could be broadened to reflect more clearly the full range of activities and responsibilities of the new Subcommittee, including fact-finding, recommendations, and technical assistance.

18  Some delegations found that the standards of assessment contained in Article 1(2) (‘in accordance with international standards’) were too broad and unspecified and that it was not clear which international standards were de facto included in this notion. Some delegations were of the view that it was important to provide a broad frame of reference for the Subcommittee and the States parties that would include the major international standards. Many found that ‘international standards’ meant the standard or the definition of torture set out in the CAT and, therefore, suggested a deletion of the words ‘in accordance with international standards’ and, if necessary, inserting a specific reference to the Convention alone.

19  During the second session of the Working Group from 25 October to 5 November 1993, it was agreed to replace the words ‘agrees to’ by the word ‘shall’ and ‘within its territory’ by ‘in any territory under its jurisdiction’.10

20  The delegation of Mexico proposed to add the words ‘provided that full respect is assured for the principles of non-intervention and the sovereignty of States’ at the end of paragraph 1. This idea was supported by several other delegations and initiated an interesting discussion on the question of prior notification of visits (at that time mentioned under Article 12 of the draft text). Others, however, found that the proposed additional reference would reduce the clarity of the central obligation of the Protocol, which was to permit preventive visits. Thus, the proposed phrase was put in square brackets.

21  Moreover, it was suggested that the prevention of torture as such should be mentioned in Article 1 as a clear objective of the Protocol. The phrase ‘and to take measures for the prevention of’ was put in square brackets before the word ‘torture’ in Article 1(2).

22  The issue of applicable ‘international standards’ of assessment was once again discussed. It was then agreed to keep the word ‘standards’ and to add the words ‘instruments’ and ‘law’ and to put all three words in square brackets.

23  The Working Group held its third session from 17 to 28 October 1994.11 Although the outcome of the beginning of the first reading had already been put in an annex to the second Working Group report,12 several delegations did not agree with certain aspects of the text of Article 1(1). Thus, it was decided in the third session to insert the following words into the footnote: a proposal was made by some delegations that further consideration be given at the second reading to adding the words ‘arrest or detention’, following the words ‘deprived of their liberty’.13

(p. 720) 24  During the fifth session from 14 to 25 October 1996 the Working Group decided to consider Articles 1 and 8 together. Although the Working Group decided in the second plenary meeting on 17 October 1996 to suspend the drafting process on Articles 1 and 8, certain negotiations had taken place on both provisions.14

25  Different opinions still existed on the question of prior consent (for some States, the ratification of the Protocol would in itself mean prior consent to any mission; for others, consent would have to be expressed on each occasion and the Protocol as such should only regulate the different forms of consent). In the course of the discussions, many delegations (among them Australia, Brazil, Canada, Chile, Denmark, Ethiopia, France, Germany, the Netherlands, South Africa, Switzerland, and Uruguay) stated that the ratification of the Protocol itself should be sufficient and no further consent would be needed. In the view of various NGOs (APT, AI, the International Commission of Jurists, IFACAT, ISHR, IFHRL, HRW, and the Women’s International League for Peace and Freedom), the entire purpose and functions of the Protocol would be undermined if a requirement of prior consent to receive missions was integrated into the text of the Protocol, as this would permit States parties to avoid obligations under the instrument. Negotiations for each and every visit would be the consequence. The delegation of Mexico, however, strongly favoured the idea of prior consent and held that the text of the first reading remained valid. It was supported by the delegations of Cuba, China, and Japan, who shared most of Mexico’s concerns.

26  Another point of discussion was the question of how fundamental principles contained in the Charter of the United Nations (in particular the principles of non-intervention and sovereignty of States) were to be reflected in the OP.

27  On 25 October 1996, the Chairperson noted that no agreement could be reached on the texts of Articles 1 and 8 during the fifth session, and it was decided to consider the draft texts of these Articles (which constituted the basis for future work) at a later stage.

28  At the sixth session from 13 to 24 October 1997 and at the seventh session from 28 September to 9 October 1998, Article 1 was not discussed. However, the observer for Australia, who chaired the informal consultation at the seventh plenary meeting on 6 October 1998, indicated that with regard to Article 1, the following elements were discussed:15

  1. (a)  It was felt that the order of paragraphs could be changed so as to focus first on the preventive nature of the Protocol and then on how the Protocol would operate through visits.

  2. (b)  A number of delegations noted that further work needed to be done regarding the scope of the article. Language on definitions in the Convention was referred to in particular.

  3. (c)  The need for the SPT to accept a mission was discussed, namely whether ratification meant a standing invitation to the Subcommittee or whether each mission should be subject to the prior consent of a State party.

  4. (d)  A possible reference to applicable laws and standards in the article was also discussed.

With regard to Article 8, the close and delicate link to Article 1 was generally recognized.

(p. 721) 29  The Working Group held its eighth session from 4 to 15 October 1999,16 where it decided to hold a general discussion on several issues, among them the issue of dialogue and cooperation between the Subcommittee and the States parties. Articles 1 (purpose and scope of the Protocol) and 8 (types of missions and their notification) were considered to be directly relevant to this discussion.17 During the discussion, the following main issues were raised with regard to Article 1.

30  It was brought up that the wording of Article 1(1), permitting visits to any place in any territory under a State party’s jurisdiction, might infringe upon domestic legislation or have a potential impact on non-States parties to the Protocol (eg in cases when access would be sought to diplomatic missions or foreign military installations).

31  Furthermore, it was suggested by some delegations that the phrase ‘at its instigation or with its consent or acquiescence’ should be deleted, because it provided a wide scope for controversy.

32  Several delegations found that the notion ‘may be held’ was too broad and imprecise, while others supported this formulation.

33  With regard to the wording ‘in accordance with applicable international law and relevant international standards’, as contained in Article 1(2), it was discussed whether or not this formula was sufficiently clear, and whether only binding or also recommendatory standards were comprised by this notion.18

34  Another issue that was scrutinized again during the eighth session was the question of prior consent. Concerning this open issue, still no consensus could be found within the Working Group. It was emphasized by some delegations that in the absence of a standing invitation, the OP would not bring much, if any, added value to the Convention since Article 20 CAT already allowed the Committee to undertake confidential missions with the prior consent of the State party concerned. Several delegations found that the principle of a standing invitation was in full conformity with the principle of national sovereignty, since the ratification of the Protocol was optional, and the decision to ratify was itself an act of national sovereignty. Others, however, were of the opinion that such far-reaching competences would be an infringement of the sovereignty of States and thus unacceptable.19

35  During the ninth session from 12 to 23 February 2001, the Working Group held a general debate on the alternative draft, introduced at the second meeting of the Working Group on 13 February 2001, and submitted by the delegation of Mexico with the support of GRULAC. The draft proposed that States parties to the Protocol should create national mechanisms for the prevention of torture. The draft was strongly supported by most of the delegations who especially emphasized the complementary nature of the proposed national and international mechanisms.20

36  During the tenth session of the Working Group from 14 to 25 January 2002, a general debate was held on the proposed two-pillar system, which would involve combining an international visiting mechanism with national mechanisms in each participating State.21

37  With regard to the question of prior consent, the delegations of Denmark and Finland once again emphasized that the visiting powers should be exercised on the basis of an open invitation in order to make the mechanisms as efficient as possible.

(p. 722) 38  On 17 January 2002, the Chairperson-Rapporteur presented her proposal for an OP.22 In drafting her proposal, she had been inspired by all the ideas expressed within the various draft texts (the initial Costa Rican draft, the drafts submitted at the ninth session of the Working Group by GRULAC and the EU, as well as the new alternative draft put forward by the US delegation).23 Part I (General Principles) of her draft set out the objective of the Protocol, ie to establish a system of regular visits by independent international and national mechanisms in Article 1.

39  On 22 January 2002, a debate was then held on the Chairperson’s proposal.24 The following States were in favour: Spain (on behalf of the European Union and the Central European and Eastern European States), Switzerland, Guatemala, Canada, Latvia, New Zealand, Norway, Hungary, Argentina, Slovenia, Mexico, Ecuador, Georgia, Uruguay, Poland, Peru, Costa Rica, Czech Republic, Chile. Others were against it or at least expressed concern: United States of America, Egypt, Russian Federation, Saudi Arabia, Japan, Cuba, India, Syrian Arab Republic, Kuwait, Israel, Algeria, and the Arab Group. China and Turkey seemed to be indifferent.

40  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, with fourteen abstentions.25

41  In July of the same year, the draft OP was brought before the ECOSOC. Again, the adoption process met with opposition as the United States proposed—like Cuba had done before—an amendment to the resolution aiming at reopening the drafting discussion on the text of the OP. However, the US proposal was rejected by twenty-nine votes and, therefore, the resolution aiming at the adoption of the Protocol was adopted by thirty-five votes in favour, eight votes against, and ten abstentions (totalling fifty-three members of ECOSOC).26

42  The draft text was then forwarded for further consideration to the Third Committee of the UN General Assembly, which addressed it during its meeting in November 2002. By that time, it was Japan who felt that the vote should be postponed for at least twenty-four hours in order to reconsider the financial aspect laid down in the draft text. But again, after only a short discussion, the proposal was voted down. After the United States had tried to hinder the ongoing adoption of the OP a second time by submitting an amendment which foresaw that the new visiting mechanism should only be financed (p. 723) by contributions of States parties, the issue itself was submitted to a vote and approved by the Third Committee with 104 votes in favour, eight votes against, and thirty-seven abstentions.27

3.  Issues of Interpretation

43  The travaux préparatoires show that after many years of extremely difficult discussions, a compromise could only be achieved through the establishment of the two-pillar system, ie visits to be carried out by both international and national mechanisms. Originally, the various drafts of the OP only contained the UN Subcommittee as visiting body until Mexico introduced the idea of a domestic counterpart in 2001.28 Mexico belonged to the group of States which strongly opposed the Costa Rica Draft because of its alleged interference with State sovereignty and, therefore, favoured the idea of prior consent for every visit by the Subcommittee.29 Its alternative draft was aimed at saving the principle of State sovereignty and non-interference with internal affairs by replacing the Subcommittee, as far as possible, with the introduction of a domestic body and reducing the function of the Subcommittee to being ‘responsible for supporting and supervising the work carried out by national mechanisms’.30 Hence, the suggestion of a national visiting body was not made with the intention to establish a two-pillar system. It is, therefore, not surprising that many States and NGOs were originally very sceptical about the intentions behind the Mexican Draft. They called for a proper balance between the national and international components of the two-pillar system, which ultimately emerged by way of compromise.

44  The two-pillar system works according to the principle of subsidiarity and the complementary nature of the OP,31 ie the Subcommittee, in addition to conducting visits on its own, can assist NPMs in carrying out their tasks effectively.32 The SPT conceives this system established by the OP as an ‘interlocking network of mechanisms carrying out visits and other related functions under their preventive mandates in cooperation (p. 724) with each other’.33 In fact, this seems indeed to be a more accurate picture of this system than two pillars: while the SPT and the NPMs are separate bodies working independently from each other, effective communication, information-sharing, and coordination between them are relevant for the effectiveness of their work for the prevention of torture and ill-treatment.34

45  Article 1 OP introduces the general obligation of States parties to permit regular visits to places of detention. As to the regularity of the visits, although Article 1 OP defines the objective of the present Protocol as the establishment of a ‘system of regular visits’ undertaken by national and international bodies, the SPT itself has expressed doubts as to whether it will be able to visit every State party once every four to five years, which it considers necessary for effective prevention of ill-treatment.35 The SPT is reaching its financial and capacity limits by an increasing number of States parties. The SPT Chair stated at the GA in October 2016 that ‘as ratifications continue, we will continue to fall further away from achieving our benchmark aspiration of visiting each state party on a periodicity akin to the average reporting cycle to the human rights treaty bodies or of Universal Periodic Review’.36 In fact, the SPT has actually carried out five visits in 2014, eight visits in 2015, eight visits in 2016, eight visits in 2017, and six visits in 2018.37 Hence, as predicted,38 NPMs have been and will be ‘the central bodies of the system of prevention that the OPCAT puts in place’.39 The degree of frequency that is actually necessary for a visiting system to stay truly preventive is elaborated under Article 19 OP.

46  The States parties’ obligation to establish a system of regular visits includes all places ‘where people are deprived of their liberty’. Together with the two-pillar system between the SPT and the NPMs, these interdependent obligations add up to a system reflecting the principle of cooperation. This principle is an overarching theme of the OP (p. 725) and visible in its various provisions40 that foresee a triangular constructive relationship between the State Party, the SPT and NPMs.

47  Finally, Article 1 OP reiterates the principle of prevention enshrined in the preamble,41 as it formulates that the prevention of torture and other ill-treatment is the key aim of the monitoring bodies’ visits. With reference to Article 1 OP, the SPT describes the NPM’s visits as its main preventive task.42 This monitoring procedure is based on the experience that torture usually takes place behind closed doors and can, therefore, be best prevented by opening up closed institutions to independent scrutiny. The very fact that a domestic or international prison inspection team may conduct unannounced visits to places of detention has a deterrent effect. Further, only first-hand information enables the monitoring body to have a distortion-free picture of the conditions.43

48  The adoption of the OP signifies enormous progress in favour of international human rights monitoring compared to the CAT.44 In Article 20(3) CAT, the principle of State sovereignty was still strongly upheld as the Committee against Torture, in the context of an inquiry procedure, is allowed to carry out a fact-finding visit to the territory of the State party concerned only in agreement with the respective Government; further, States parties may opt out of the inquiry procedure in accordance with Article 28. A breakthrough on this issue was only achieved because the purpose of visits under the OP differs fundamentally from those under Article 20 CAT. An inquiry procedure is only undertaken after the Committee has received reliable information about systematic practices of torture in the territory of a State party and aims at investigating these allegations. The visits of the Subcommittee under the OP are, however, of a purely preventive nature, as defined by the objective of the OP in Article 1. Hence, the fact that the Subcommittee visits a particular country does not necessarily indicate that there might be any particular allegations; this principle is underlined by the term ‘regular visits’. The SPT has the power to conduct visits without invitation by the State party. Further, a significant change was undergone through the establishment of national mechanisms who have local expertise and ownership as well as the possibility to conduct regular45 visits and establish a sustainable dialogue with the authorities.

Stephanie Krisper

Footnotes:

1  Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment submitted by Costa Rica [1980] UN Doc E/CN.4/1409.

2  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.

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 fourth session [1995] UN Doc E/CN.4/1996/28.

4  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 II.

5  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.

6  ibid, Annex II.

7  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, Annex II E.

8  E/CN.4/1991/66 (n 2); see above para 3.

9  cf 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 25ff.

10  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1993] UN Doc E/CN.4/1994/25, para 22.

11  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 third session [1994] UN Doc E/CN.4/1995/38.

12  E/CN.4/1994/25 (n 10).

13  E/CN.4/1995/38 (n 11) Annex.

14  cf 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 fifth session [1996] UN Doc E/CN.4/1997/33, paras 23ff.

15  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 seventh session [1998] UN Doc E/CN.4/1999/59, paras 14–15.

16  E/CN.4/2000/58 (n 4).

17  cf ibid, paras 24ff.

18  ibid, para 32.

19  ibid, paras 37–39.

20  E/CN.4/2001/67 (n 5) paras 19–21. For the text of the Mexican Draft see above para 6.

21  E/CN.4/2002/78 (n 7) paras 13ff.

22  ibid, Annex I.

23  ibid, para 45. For the texts see above 2.1.

24  ibid, paras 54–114.

25  UNCHR, ‘Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ Res 2002/33 of 22 April 2002. The following States voted in favour: Argentina, Armenia, Austria, Bahrain, Belgium, Brazil, Burundi, Canada, Chile, Costa Rica, Croatia, Czech Republic, Democratic Republic of Congo, Ecuador, France, Germany, Guatemala, Italy, Mexico, Peru, Poland, Portugal, Senegal, South Africa, Spain, Sweden, United Kingdom, Uruguay, Venezuela; against: China, Cuba, Japan, Libyan Arab Jamahiriya, Malaysia, Nigeria, Republic of Korea, Saudi Arabia, Sudan, Syrian Arab Republic; abstentions: Algeria, Cameroon, India, Indonesia, Kenya, Pakistan, Russian Federation, Sierra Leone, Swaziland, Thailand, Togo, Uganda, Vietnam, Zambia.

26  ECOSOC, ‘Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ Res 2002/27 of 24 July 2002. The following States voted in favour: Andorra, Angola, Argentina, Austria, Bahrain, Benin, Brazil, Burkina Faso, Burundi, Chile, Costa Rica, Croatia, El Salvador, Fiji, Finland, France, Georgia, Germany, Ghana, Guatemala, Hungary, Italy, Malta, Mexico, Netherlands, Peru, Republic of Korea, Romania, South Africa, Spain, Sweden, Suriname, Uganda, Ukraine, United Kingdom; against: Australia, China, Cuba, Egypt, Japan, Libya, Nigeria, Sudan; abstentions: Bhutan, Cameroon, Ethiopia, India, Nepal, Pakistan, Qatar, Russian Federation, USA, Zimbabwe.

27  UNGA, ‘Draft Resolution: Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2002) UN Doc A/C.3/57/L.30. The following States voted in favour: Afghanistan, Albania, Andorra, Angola, Antigua and Barbuda, Argentina, Armenia, Austria, Azerbaijan, Belgium, Benin, Bosnia Herzegovina, Bolivia, Brazil, Bulgaria, Burkina Faso, Burundi, Canada, Cape Verde, Chile, Colombia, Congo, Costa Rica, Croatia, Cyprus, Czech Republic, Democratic Republic of Congo, Denmark, Dominican Republic, Ecuador, El Salvador, Eritrea, Estonia, Fiji, Finland, France, Gambia, Germany, Greece, Guatemala, Guinea, Hungary, Iceland, Indonesia, Ireland, Italy, Jordan, Kiribati, Kyrgyzstan, Latvia, Lesotho, Liechtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Malawi, Mali, Malta, Mauritius, Mexico, Mongolia, Monaco, Morocco, Mozambique, Namibia, Nauru, Netherlands, New Zealand, Nicaragua, Norway, Panama, Papua New Guinea, Paraguay, Peru, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Saint Kitts and Nevis, Samoa, San Marino, Senegal, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Switzerland, Trinidad and Tobago, Turkey, Uganda, Ukraine, United Kingdom, Uruguay, Vanuatu, Venezuela, Yugoslavia, Zambia, Zimbabwe; against: China, Cuba, Israel, Japan, Nigeria, Syria, USA, Vietnam; abstentions: Algeria, Australia, Bahamas, Bahrain, Bangladesh, Barbados, Belize, Bhutan, Brunei Darussalam, Cameroon, Egypt, Ethiopia, Georgia, Guyana, India, Jamaica, Kazakhstan, Kenya, Kuwait, Libya, Malaysia, Mauritania, Myanmar, Nepal, Oman, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Singapore, Sudan, Tanzania, Thailand, Togo, Tunisia. Uzbekistan.

28  E/CN.4/2001/67 (n 5) Annex I; see above Art 1 OP, 2.

29  cf above 2.2.

30  E/CN.4/2001/67 (n 5) Annex I, Art 2.

31  See above Preamble OP, § 30.

32  cf below Art 11(b) OP.

33  SPT, ‘Second Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Corrigendum’ (2009) UN Doc CAT/C/42/2/Corr.1, para 6; 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 10; 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 10.

34  See Arts 11(b)(ii) and (iii) and 20(f) OP.

35  SPT, ‘First Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2008) UN Doc CAT/C/40/2, paras 15–17.

36  ‘Statement by Sir Malcolm Evans, Chairperson of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment at the 71st session of the General Assembly’ New York, 18 October 2016 <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20741&LangID=E> accessed 12 December 2018.

37  In 2014 SPT undertook five field visits to Maldives, Togo, Malta, Ecuador, and Nicaragua; in 2015 eight visits to Brazil, Turkey, Italy, the Netherlands, Philippines, Guatemala, Nauru, and Azerbaijan; in 2016 SPT carried out eight visits to Mexico, Mauritania, Kazakhstan, Ukraine, Romania, Chile, Cyprus, and Benin, and eight visits were carried out in 2017 as well to Morocco, Spain, Mongolia, Panama, Bolivia, the Former Yugoslav Republic of Macedonia, Hungary, and Niger. In 2019, the SPT visited six countries: Liberia, Kyrgyzstan, Poland, Portugal, Belize, and Uruguay.

38  SRT (Nowak) ‘Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2006) UN Doc A/61/259, para 71: ‘While the Subcommittee on Prevention will only be in a position sporadically to conduct missions to a growing number of States parties, the main responsibility for ensuring increased transparency and accountability of places of detention will rest on the national visiting bodies.’

39  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, 57.

40  See Arts 2(4), 11(1)(c), 12, 14, 16, 22, 31 OP.

41  See above Preamble OP, § 25.

43  See below Art 20 OP, § 20.

44  cf APT and IIDH, Optional Protocol to the UN Convention Against Torture: Implementation Manual (rev edn, 2010) 70.

45  The precise meaning of the term ‘regular’ and other terms used in Article 1 are further defined in the following articles and will be discussed there: cf below for ‘regular’ Art 17 OP; for ‘independent’ Art 5 (SPT), Art 18 (NPMs); for ‘places where people are deprived of their liberty’ Art 4 (NPMs).