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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.4 Obligation to Allow Preventive Visits to All 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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 06 December 2021

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

(p. 739) Article 4  Obligation to Allow Preventive Visits to All Places of Detention

  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.

1.  Introduction

Article 4 is one of the key provisions of the OP, as it, first, establishes an unequivocal obligation of States parties to allow visits by both the SPT and the NPMs ‘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’.

Second, it defines deprivation of liberty and places of detention—but not without controversy. The term ‘places of detention’ is noted by the provision as the generic term that all places falling within the scope of the Protocol will be referred to. This term is hence used in this Commentary for all places of deprivation of liberty that visiting bodies are allowed to visit according to Article 4 OP.1

(p. 740) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)2

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 reason, 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.

Revised Costa Rica Draft (15 January 1991)3

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.

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

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].

(p. 741) Text of the Articles which Constitute the Basis for Future Work (2 December 1999)5

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 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.]

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.

EU Draft (22 February 2001)7

Article 1 (new)

For the purpose of this Protocol:

  1. (a)  Deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will or by order of any judicial, administrative or other public authority;

  2. (b)  A mission includes the travel and all the activities carried out by the Sub-Committee in a State party’s territory;

  3. (p. 742) (c)  A visit means the inspection of a physical facility where persons are deprived of their liberty;

  4. (d)  The Sub-Committee shall be deemed to be represented by its delegation.

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.

US Draft (16 January 2002)8

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).

2.2  Analysis of Working Group Discussions9

10  During the ninth session of the Working Group from 12 to 23 February 2001, a general discussion was held on the scope of prevention under the OP.10 Some delegations were of the opinion that prevention should be considered in the context of the provisions of the CAT dealing specifically with prevention, for example Articles 10 and 11, and should not involve monitoring activities. At the international level, monitoring should remain in the competence of the Committee and the SRT. Many delegations, however, found that prevention activities should include visits to all places where persons were deprived of their liberty, such as prisons for men and women, police stations, psychiatric wards, detention centres for minors and immigrants, and places of detention under the control of the judicial authorities. Other delegations raised concerns about the implications of such a scope of authority for constitutional and other fundamental rights. Regarding visits to unofficial places of detention, some delegations considered that they should not be part of the preventive activities. The existence of such places constituted, per se, a violation of human rights that should be dealt with by the Committee and the SRT in the framework of their monitoring functions.

(p. 743) 11  During the tenth session of the Working Group from 14 to 25 January 2002, the delegation of Japan questioned the appropriateness of an international body with unlimited powers to inspect places of detention in the territory of States parties.11 The delegation of Egypt strongly opposed the idea of an international mechanism with unlimited authority to visit any detention facility within a State at any time, and indicated that such unlimited authority would encounter constitutional obstacles. The delegations of Cuba and Egypt also suggested that States should have the possibility of refusing access to places of detention for reasons linked to national security. The Chairperson, however, pointed out that the mandate of the Working Group was to establish a preventive system of regular visits to places of detention on a universal scale and that Article 20 CAT had a clear monitoring and sanctioning function, not a preventive one. It was generally felt that the work of the Committee should not be duplicated and that the new bodies established under the OP should have different and additional functions in the field of torture prevention.

12  The Chairperson-Rapporteur’s proposal in its Article 4 emphasized the general principles regarding visits.12 In the discussion, the delegation of the United States of America found that the proposal would create an international Subcommittee on Torture that would have virtually unrestricted authority to visit and inspect any place where persons were or might be detained in any State party to the OP. In its view, this was incompatible with the principle of accountability and the need for reasonable checks and balances on any grant of power.13 The US delegation referred to its alternative draft, submitted during the fifth meeting14 of the Working Group on 16 January 2002, which further elaborated ideas presented by it during previous sessions. This draft aimed to recognize the valuable role visiting mechanisms, such as the CPT, could play at the regional level. The delegation of Cuba found that this proposal was too vague regarding which places of detention could be subject to visitations.

13  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 29 votes to 10.15

3.  Issues of Interpretation

3.1  Deprivation of Liberty

14  Article 4(2) explicitly defines deprivation of liberty as ‘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’. This broad definition can also be found in other international standards.16

15  The meaning of deprivation of liberty has been subject of extensive discussions and interpretation by international human rights bodies in relation to the right to liberty in Articles 9 ICCPR and 5 ECHR. Liberty of person is understood to relate to ‘freedom of (p. 744) bodily movement in the narrowest sense’17 or ‘confinement to a certain limited space’.18 The notion of deprivation of liberty contains an objective element of a person’s physical confinement and a subjective element of lack of free consent.

16  Deprivation of liberty must be delimited from restriction of freedom of movement. According to the ECtHR the difference is ‘one of degree or intensity, not of nature or substance’.19 For the interpretation of deprivation of liberty, the concrete situation is the starting point and account to be taken ‘of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’.20 Factors to be assessed are ‘the existence of a possibility of leaving the restricted area, the degree of supervision and control over the person, his or her is isolation, [sic] and the availability of social contacts’.21

17  As to the subjective criterion, the Human Rights Committee stated in its General Comment No 35 that deprivation of personal liberty pursuant to Article 9 ICCPR is ‘without free consent’;22 so did the Working Group on Arbitrary Detention.23 The ECtHR has elaborated that the ability of the person concerned to leave the alleged place of detention must not be only a theoretical one.24 However, the ECtHR has cautioned putting too much focus on the subjective element, holding that

the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he [the applicant] may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.25

(p. 745) As to custodial settings or placement in hospital, it is for the ECtHR also not decisive if the applicant showed lack of consent, eg by attempts to abscond.26 However, while a lack of legal capacity does not necessarily lead to the conclusion the person concerned cannot understand and hence consent to the situation,27 a person may, in certain situations, validly replace the wish of a person with impaired mental faculties, ‘acting in the context of a protective measure’.28

3.2  Places of Detention

18  As to the interpretation of Article 4 OP, it is worth noting that the second sentence of Article 4(1) reads: ‘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.’ This sentence reflects the principle of prevention underlying the OP. Regarding the scope of Article 4 OP, the SPT noted that ‘the term “places of detention”, as found in article 4 of the Optional Protocol, should be given a broad interpretation’.29 In its Compilation of Advice, the SPT concretized that ‘[t]he preventive approach which underpins the OPCAT means that as expansive an interpretation as possible should be taken in order to maximise the preventive impact of the work of the NPM’.30

19  As Article 4(1) OP obliges States parties to also allow visits to any place where persons ‘may be deprived of their liberty’, a place falls within the scope of the SPT’s and NPM’s visiting mandate when the SPT or the NPM considers that a person might be deprived of his/her liberty. Therefore, it is only necessary that a place have the potential to de facto limit the right of personal liberty.

20  Article 4 OP explicitly refers to a ‘public or private custodial setting’. The relevant provisions in the two paragraphs of Article 4 seem, however, to contain certain (p. 746) contradictions and are in need of interpretation. Article 4(1) contains an explicit obligation of States parties to allow visits 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’ while Article 4(2) omits reference to consent or acquiescence by the public authority. However, a systematic interpretation of both provisions, in accordance with the object and purpose of the treaty to provide a comprehensive monitoring of all places of detention, requires that they, as the SPT stated, ‘need to read consistently together and … place within the scope of the Optional Protocol any public or private custodial setting’.31 The SPT noted that an interpretation that is limited to ‘such traditional places of deprivation of liberty as prisons would be overly restrictive and, in the view of the Subcommittee, clearly contrary to the Optional Protocol’.

21  The SPT interpreted the application of the terms ‘consent’ and ‘acquiescence’ in Article 4(1) OP to mean that the scope of the OP includes

any place in which a person is deprived of liberty (in the sense of not being free to leave), or where it considers that a person might be being deprived of their liberty, if it relates to a situation in which the State either exercises, or might be expected to exercise a regulatory function.32

In other words, the conduct of regulating—or the fact that the State should be regulating—creates again the link between the public authority and the place of deprivation of liberty.33 This limits the scope of Article 4 OP regarding purely private places of detention to situations in which individuals are detained by private groups when State authorities are aware of it and fail to exercise due diligence to prevent such detention.34 For example, if the police are aware of the fact that private paramilitary groups are holding people in detention and do nothing in their power to prevent this, they become complicit by acquiescence and the SPT or relevant NPM must be granted access to these facilities. The same holds true for private hospitals or nursing homes, which hold persons against their will with the mere knowledge and consent of a public authority. In any case, the visiting bodies must be granted access to detention facilities which governments have outsourced to private companies.

22  Such a broad interpretation of the scope of Article 4 OP is in line with the CPT’s understanding of the scope of its mandate pursuant to Article 2 ECPT:35

Visits may be organised in all kinds of places where persons are deprived of their liberty, whatever the reasons may be. The Convention is therefore applicable, for example, to places where persons are held in custody, are imprisoned as a result of conviction for an offence, are held in (p. 747) administrative detention, or are interned for medical reasons or where minors are detained by a public authority. Detention by military authorities is also covered by the Convention.36

23  It may be noted that also the comparable provision for the CPT in Article 2 ECPT was interpreted in the Explanatory Report in the sense that

[v]isits may be carried out in private as well as public institutions. The criterion is whether the deprivation of liberty is the result of action by a public authority. Accordingly, the Committee may carry out visits only in relation to persons who are deprived of their liberty by a public authority, and not voluntary patients. However, in the latter case, it should be possible for the Committee to satisfy itself that this was indeed the wish of the patient concerned.37

24  While the term ‘places of detention’ is to be interpreted extensively and an exhaustive list cannot be made, it should include, inter alia:38

  • –  prisons

  • –  police stations

  • –  pre-trial detention centres

  • –  all detention centres under military jurisdiction39

  • –  psychiatric institutions40 and mental health centres including clandestine clinics that ‘treat’ homosexuality41

  • (p. 748) social care institutions42 and welfare homes43 including homes for elderly persons44 and facilities for the care of persons with dementia45

  • juvenile detention centres46

  • homes for the young, foster homes, institutions for children with disabilities, and other family residences47 institutions for educational supervision, for children who are using drugs or alcohol, as well as orphanages

  • migrant detention centres including at so-called ‘hotspots’—major places of entry48 and confinement to a restricted area of an airport49

25  In the State party to visit, country-specific types of detention as ‘witch camps’ or slum communities50 may be also places of detention to visit. It may, however, be noted that the SPT stated that ‘[i]n any situations, the NPM ought also to be mindful of the principle of proportionality when determining its priorities and the focus of its work.’51 This statement does not suggest a prioritization of traditional places over such that fall under Article 4 OP only because of due diligence obligations; it seems only to intend to clarify that just because a facility fits within the visiting mandate of OP, this does not mean that it should be a priority in its preventive monitoring framework.52

26  Also mobile places such as means of transport are also understood as places of detention. The SPT also noted that ‘the place-based nature of inspecting can miss system-wide problems which require an intersectional approach. It can also fail to monitor instances along the chain of custody, such as transfers and periods of detention immediately after apprehension, where torture and ill-treatment can take place.’53 The SPT recommended that

the State party ensure that all places of detention are included in NPM visits, in accordance with the SPT’s evaluation that all persons deprived of their liberty in a State party are covered by the OPCAT. This includes … periods of deprivation of liberty during apprehension, transfer and removal.54

(p. 749) Hence, in accordance with CAT General Comment No 2, the OP also covers police cars and other means by which individuals are transferred.55 Such deprivation of liberty may be particularly problematic in the context of immigration processes, eg during transfers, disembarkation, and expulsion, as the persons concerned are under high stress and in a very vulnerable situation.56

3.3  Meaning of ‘under jurisdiction and control’

27  Article 4 OP indisputably obliges States parties to allow visits to places of detention within their territory,57 including dependencies and overseas territories if the States parties do not limit the reach of the OPCAT at the time of ratification or accession.58 Any effort to exclude the application of the OP from airports, seaports, islands or border posts—possibly by declaring them ‘international zones’—would thus be an act of bad faith not permitted by the rules of international law.

28  Regarding extraterritorial obligations, a strict literal interpretation of the English version of Article 4 OP would come to the result that the place of detention must be under both the ‘jurisdiction and control’59 of the State party in order for the OPCAT to be applicable. The Spanish version reads ‘jurisdicción y control’, the Russian ‘под его юрисдикцией и контролем’‎, the Arabic ‘يخضــع لولايتها ولسيطرتها‎’ and the Chinese ‘管辖和控制下’‎. However, the French version of the text, which is equally authentic,60 is formulated ‘sous sa jurisdiction ou son contrôle’ (ie, ‘under jurisdiction or control’).61

29  This discrepancy is solved by a systematic interpretation in accordance with the ordinary meaning of the terms in the context and in the light of the object and purpose of the OP.62 As elaborated for the preamble of the OP,63 the implementation of the OPCAT is to be seen as an effective preventive measure that Articles 2(1) and 16(1) CAT oblige States parties to the CAT to undertake. In regards to the geographical scope of application of the obligation to prevent torture, the CAT Committee stated that the Convention (p. 750) applies at all times and in any territory under a Contracting State’s jurisdiction which is to be understood to ‘include all areas under the effective de facto control of the State party, by whichever military or civil authorities such control is exercised’ and ‘all persons under the effective control of its authorities, of whichever type, wherever located in the world’.64

30  In this sense, the SPT stated in its Guidelines for the definition of the OPCAT’s geographical scope of application:

The State should allow the NPM to visit all, and any suspected, places of deprivation of liberty, as set out in Articles 4 and 29 of the Optional Protocol, which are within its jurisdiction. For these purposes, the jurisdiction of the State extends to all those places over which it exercises effective control.65

31  As ‘effective control’ is a vague term, its boundaries are not clear-cut.66 It must be noted that the threshold for deciding whether or not effective control is executed is relatively high by the UN Human Rights Committee as well as the European Court of Human Rights. They have observed that a State has to exercise a degree of ‘effective control over an area’ or ‘overall effective control’67 over such a territory. Also the ICJ requires either territorial control or the exercise of sovereign rights in occupied territories.68

32  Therefore, only situations of effective territorial control are clear-cut. Such are cases in which an individual is detained on a military base or in premises over which the foreign State has control, eg ‘diplomatic and consular premises and prisons’.69 Hence, States parties exercising jurisdiction and control outside their own territories over places of detention, such as the Russian authorities in the Transnistrian region of Moldova or Georgian authorities in Abkhazia and Tskhinvali regions in Georgia, are under an obligation to allow visits of the UN Subcommittee and the respective NPMs.70 In this sense, a State party can also not evade its responsibility by detaining persons extraterritorially, (p. 751) eg asylum-seekers in extraterritorial processing centres or rejected asylum-seekers in ‘regional protection areas’ pending return to their countries of origin.71

33  The presented definition of scope means that a contrario the authorities have no obligation to provide access to places of detention which are under their jurisdiction, but not under their effective control. If parts of a State’s territory are occupied by another State, such as Nagorno Karabakh, which de jure is part of Azerbaijan, but is currently occupied by Armenia, or under the de facto control of insurgent groups, such as certain areas controlled by the Daesh in Syria or Iraq, or governed by de facto authorities, such as the territories of Abkhazia and Tskhinvali region in Georgia, the respective governments are not required to provide access to the places of detention in such territories. This does not, however, absolve the governments from their responsibility under international law.

34  It may be noted, however, that the SPT visited areas in the Ukraine in 201 which the Ukraine calls ‘uncontrolled territories’; it met with the de facto authorities in Donestk and attempted to visit places of detention under their effective control. As these authorities are not States Parties to the OPCAT, the legal basis for the SPT was that these areas were under the legal jurisdiction of the Ukraine, even though not under its control. Hence, the SPT has, in its practice, reflected the ‘jurisdiction or control’ approach.72

35  The SPT elaborated on the issue of ‘cross-border monitoring of persons in detention’ in such a situation where ‘a State party to the Optional Protocol (a sending State) enter into an arrangement under which those detained by that State are to be held in facilities located in a third State (a receiving State)’.73 The SPT was confronted with the issue in the case of places of detention that are under the jurisdiction and control of a State party, but are being leased by other States and accommodating persons detained by those States.74 It considered that the sending State should ensure that such an agreement also provides for its NPM to have the legal and practical capacity to visit those detainees in accordance with the provisions of the OP and the Subcommittee Guidelines.