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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.3 National Preventive Mechanism

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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 02 July 2022

Subject(s):
Torture — Treaties, interpretation

(p. 735) Article 3  National Preventive Mechanism

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).

1.  Introduction

Article 3 OP introduces the national visiting body of the OP’s two-pillar system by obliging the States parties to set up, designate, or maintain one or more domestic visiting bodies for the prevention of torture and other ill-treatment, referred to as a national preventive mechanism (NPM). This obligation is the innovative feature distinguishing the OP from its regional counterpart, the ECPT.

The introduction of a national visiting body into the OP’s prevention system was suggested by Mexico with the intention of weakening the SPT’s mandate. This led to the establishment of the two-pillar system in conformity with the principle of subsidiarity, ie that States have the primary responsibility for an efficient protection of human rights and that international monitoring bodies play a supplementary role in ensuring States’ compliance with their international obligations.

However, instead, the creation of an obligation of States parties to prevent torture and other ill-treatment by establishing NPMs has significantly strengthened the OP. Independent national entities, NPMs are in a better position than international human rights mechanisms such as the SPT to conduct regular visits to places of detention, identify the major problems and shortcomings, and follow-up on them with State authorities in a continuous dialogue.1 NPMs have been called ‘the front line of torture prevention’2 due to their potential for regular involvement with State authorities over the implementation of an international human rights treaty.3 The SPT has (p. 736) stated its commitment to the development of an NPM in numerous reports by noting that ‘[o]ne of the crucial factors preventing ill-treatment is the existence of a fully functioning system of independent visits to monitor all places where person may be deprived of their liberty’.4 And it is for this reason that the SPT’s work with NPMs in assisting them to become effective has been said to be of greatest added value to the OPCAT system.5

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Mexican Draft (13 February 2001)6

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.

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.

  2. 2.  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. 737) 2.2  Analysis of Working Group Discussions

On 13 February 2001, at the second meeting of the Working Group during its ninth session from 12 to 23 February 2001, the delegation of Mexico introduced its alternative draft (prepared with the support of GRULAC).

This draft was based on the principle that States have the primary responsibility for the protection of human rights and that the action of the international mechanism has to be complementary to the action taken by each individual State. Thus, in the alternative draft it was proposed that States parties to the Protocol should create national mechanisms for the prevention of torture. A number of delegations from other regional groups supported the Mexican draft and appreciated Mexico’s efforts.8 During the discussions, many delegations emphasized the complementary nature of the proposed national and international mechanisms. Others, however, found that there was no proper balance between the national and the international levels and expressed concern that the latter seemed to become subsidiary to the former.9 The delegations who supported the alternative draft underlined that it constituted an improvement of the original draft, supplemented by the added value of national mechanisms. National mechanisms would be in a better position to prevent torture and to visit facilities all over a country, including those located in remote areas where an international body would probably never be able to go. Some delegations recalled that it had been repeatedly recommended by the CPT to install mechanisms at the national level.10 Some other delegations raised concern about the financial implications of creating national and international mechanisms.

During the tenth session of the Working Group from 14 to 25 January 2002, and after the Chairperson-Rapporteur had presented her proposal, a debate was held on the concept of the two-pillar system.11 The representative of Spain on behalf of the European Union, the Central and Eastern European States, including Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and Slovenia, in association with Cyprus, Malta, and Turkey, presented a common position. These delegations welcomed the initiative to establish a two-pillar system. Similar views were expressed by the delegations of Argentina, Canada, Ecuador, Georgia, Guatemala, Mexico, Norway, New Zealand, the Republic of Korea, the Russian Federation, South Africa, and Switzerland.

The delegation of Mexico stated that it did not insist on its proposal and that it supported the creation of a strong international visiting mechanism. The delegation of South Africa expressed concern that national mechanisms might shift the focus away from the efforts envisaged to achieve strong international standards of prevention against torture. The delegations of China, Cuba, Egypt, and the Syrian Arab Republic spoke in favour of the two-pillar system and emphasized the establishment of strong national mechanisms with visiting functions and an international mechanism which would mainly provide technical assistance. The delegation of the United States of America supported a three-pillar system, taking into account also the regional level, where States should be encouraged to consider adopting mechanisms that would provide for mandatory visits to places of detention such as those contained in the ECPT and its Protocol I.12

10  It was especially the mandatory nature of the proposed national preventive mechanisms that was first questioned by certain delegates, among them Switzerland, (p. 738) Denmark, Germany, and Canada, but also the United States of America, Cuba, and Japan. Others, however, like Guatemala, Argentina, and Mexico, were of the opposite view and supported the mandatory concept.13 The Working Group finally adopted the text proposed by the Chairperson-Rapporteur. 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.14

3.  Issues of Interpretation

11  According to Article 3 OP, each State party shall ‘set up, designate or maintain at the domestic level one or several visiting bodies’. This shows that the OP, in order to accommodate the different situations in States parties,15 is leaving it open to States parties which structure their NPM has, provided it meets the Protocol’s key requirements of independence, impartiality, and efficiency, as stipulated in Articles 18 and 19 OP.

12  However, the SPT has limited the States parties’ flexibility by further developing these requirements in its guidelines, tools, and reports. It has increasingly elaborated which prerogatives the organizational form of the NPMs should fulfil and through which procedure the NPMs should come into being.16

Stephanie Krisper

Footnotes:

1  See above Art 1 OP, § 45.

2  Statement by Mr Malcolm Evans, Chairperson of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment at the seventieth session of the GA, New York, 20 October 2015.

3  E Steinerte, ‘The Jewel in the Crown and Its Three Guardians: Independence of National Preventive Mechanisms Under the Optional Protocol to the UN Torture Convention’ (2014) 14 Human Rights Law Review 1, 6, referring to Elina Steinerte, ‘The Changing Nature of Relationship between the United Nations Subcommittee on Prevention of Torture and National Preventive Mechanisms: in Search for Equilibrium’ (2013) 31 Netherlands Quarterly of Human Rights 132.

4  SPT, ‘Report on the Visit to Sweden’ (2008) UN Doc CAT/OP/SWE/1, para 16; SPT, ‘Report on the Visit to the Maldives’ (2009) UN Doc CAT/OP/MDV/1, para 15; SPT, ‘Report on the Visit to Benin’ (2011) UN Doc CAT/OP/BEN/1, para 14; SPT, ‘Report on the Visit to Mexico’ (2010) UN Doc CAT/OP/MEX/1, para 12.

5  Steinerte, ‘The Jewel in the Crown’ (n 3) 6.

6  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its ninth session [2001] UN Doc E/CN.4/2001/67, Annex I.

7  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.

8  E/CN.4/2001/67 (n 6) para 19.

9  ibid, para 21.

10  ibid, para 28.

11  E/CN.4/2002/78 (n 7) para 13.

12  ibid, para 17.

13  ibid, paras 38, 40, 80.

14  See above Art 1 OP, 2.2, § 40.

15  Malcolm D Evans and Claudine Haenni-Dale, ‘Preventing Torture? The Development of the Optional Protocol to the UN Convention Against Torture’ (2004) 4(1) Human Rights Law Review 19, 50; 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) Essex Human Rights Review 54, 57.

16  See Art 17 OP.