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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part III Mandate of the Subcommittee on Prevention, Art.12 Obligations of States Parties to Cooperate with the Subcommittee

Kerstin Buchinger

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 — International co-operation — Treaties, interpretation

(p. 820) Article 12  Obligations of States Parties to Cooperate with the Subcommittee

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.

1.  Introduction

Article 2(4) OP stipulates that the SPT and the States parties ‘shall cooperate in the implementation of the present Protocol’. This principle of cooperation constitutes one of the main pillars of the Protocol1 and creates rights and corresponding duties for both the SPT and States parties. While the duties of the SPT are spelled out primarily in Articles 2, 11, 13, and 16 OP, the corresponding obligations of States parties can be found, above all, in Articles 4, 12, 14, and 15 OP. These mutual rights and obligations are, of course, interdependent and should be interpreted correspondingly. The principle duty of (p. 821) governments is to allow country missions, without prior consent, and visits by the SPT to all places of detention, to all installations and facilities within such places of detention, and, above all, to grant the SPT the opportunity to conduct private interviews with all detainees, their family members, witnesses, lawyers, NGOs, and any other persons with whom it wishes to speak.2 This obligation corresponds to Articles 2 and 8 ECPT, and to the practice of similar bodies carrying out country missions, such as special procedures of the UN.3 As the UN Special Rapporteur on Torture (SRT) has underlined, these terms of reference are ‘fundamental, common-sense considerations that are essential to ensure an objective, impartial and independent assessment of torture and ill-treatment during country visits’.4

The object and purpose of preventive visits to places of detention differs from fact-finding missions by the SRT or the CAT Committee in the context of the inquiry procedure under Article 20 CAT. But, in addition to the fact that unannounced visits to places of detention usually by itself have a preventive effect, the SPT is explicitly entrusted by Article 16(1) to communicate its recommendations and observations to the State party and to advise it and the NPM, respectively, on the needs and the measures that should be adopted to strengthen the protection of persons deprived of their liberty against torture and ill-treatment.5 In order to advise States parties accordingly, the SPT must first carry out an independent assessment of the conditions of detention and the extent of torture and ill-treatment of detainees.

The best method of assessing the situation in the country concerned is to carry out unannounced visits to places of detention and to speak in private with all stakeholders involved, ie Government officials, NGOs, detainees, witnesses, etc. Consequently, such country missions and visits to places of detention serve different purposes: prevention, fact-finding, and cooperation with the Government concerned. On the other hand, the country missions of the SRT also aim at both fact-finding and cooperation with governments.6 A closer analysis, therefore, shows that the object and purpose of these country missions is not as different as it may seem at first.7

Since the obligation to allow visits by an international monitoring body to its territory without prior consent constitutes a fairly far-reaching waiver of a sovereign right of States by the mere fact of becoming party to the Protocol, Article 24 OP provides States parties with the possibility, upon ratification, to make a declaration postponing the implementation of Part III of the Protocol for a maximum of three years, and the CAT Committee may extend that period for an additional two years.8

(p. 822) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)9

Article 10

  1. 1.  Subject to the provisions of Article 9 paragraph 3, when the Government of a State Party to the present Protocol has been informed of a mission assigned to one or more delegate(s), the latter shall be authorised to visit in all circumstances and without previous notice any place of detention within the jurisdiction of the State Party.

  2. 2.  The delegates shall receive from the State Party concerned all facilities for the accomplishment of their task. They may, in particular, obtain all information about the places where there are persons deprived of their liberty and interview them there without witnesses and at leisure.

  3. 3.  Delegates may enter into contact with the families, friends and lawyers of persons deprived of their liberty.

  4. 4.  During each visit, the delegates shall verify that persons deprived of their liberty are being treated in conformity with the provisions of the Convention.

  5. 5.  If appropriate, they shall at once submit observations and recommendations to the competent authorities of the State Party concerned.

  6. 6.  They shall submit a full report on their mission, with their observations and recommendations, to the Committee.

Revised Costa Rica Draft (15 January 1991)10

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 restrictions;

    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. (p. 823) (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.

Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)11

Article 12

  1. [1, 6]  [Members of the delegation shall respect the national laws and regulations while undertaking the visits in the territory of the State Party concerned.] [National laws and regulations may not be used or interpreted as means or measures contravening the programme and purpose of the visits.]

  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 promote the full cooperation of all competent authorities. In particular, the State Party shall provide the delegation [in accordance with national laws and regulations] with the following:

    1. (a)  Access to its territory [and the right to travel without restriction] [for the purposes of the mission], [to freely visit places and persons referred to in Article 1];

    2. (b)  All relevant information on the places referred to [in Article 1], [in the detailed plan] including information requested about specific persons;

    3. [(c)  Unlimited access to any place referred to [in Article 1], [in the detailed plan], including the right to move inside such places without restrictions];

    4. (d)  Assistance in gaining access to places where the delegation has reason to believe, [on the basis of well-founded and reliable information] that persons may be in situations referred to [in Article 1] [and providing a convenient place for private interview];

    5. (e)  Providing access to, [and private interview with] any person in situations referred to [in Article 1,] 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. (p. 824) 3.  [Members of the delegation, [the Sub-Committee] may interview in private [at a convenient location to be provided by the competent authorities without being overheard], [without witnesses], and for the time they deem necessary, any person in situations referred to [in Article 1]. They may also communicate without restriction with relatives, friends, lawyers and doctors of persons who are or have been in situations referred to [in Article 1] and with any other person or organization that they think may be able to provide them with relevant information for their mission.]

[The members of the Sub-Committee] [where necessary, with the assistance of their advisors] may interview in private, persons in situations referred to [in Article 1,] and may communicate with any person whom they believe, on the grounds of reliable information, can supply relevant information.]

Text of the Articles which Constitute the Basis for Future Work after the Second Reading (2 December 1999)12

Article 12

  1. [1.  The Subcommittee and the State Party shall cooperate with a view to the effective fulfilment of the [mission] [visit]. In particular, the State Party shall provide:

    1. (a)  The delegation with access to, and freedom of movement within, any territory under its jurisdiction [and control] for the conduct of the [mission] [visit];

    2. (b)  The Subcommittee or its delegations with all information relevant to the effective conduct of the [mission] [visit], including in particular on any person or places referred to in Article 1 of the Protocol;

    3. (c)  The delegation with access to and within any place referred to in Article 1 of the Protocol;

    4. (d)  The delegation with access to persons referred to in Article 1 of the Protocol, and the opportunity for private interviews with them;

    5. (e)  The Subcommittee and its delegation with the opportunity to communicate freely with any other person who is in a position to supply relevant information.

  2. [2.  The obligations referred to above shall be subject to any arrangements that the State Party concerned considers necessary for:

    1. [(a)  The protection of sensitive areas [equipment] or information [based on imperative ground of national security] [or economic, technological or scientific secrets];]

    2. [(b)  The protection of any constitutional obligations the State Party concerned may have with regard to proprietary rights, searches and seizures, or other constitutional rights [of individuals];]

    3. [(c)  The physical protection and safety of persons, including the members of the Subcommittee; and]

    4. [(d)  The protection of personal data of individuals as required by national legislation [consistent with human rights principles]].

If the State Party is unable to provide full access to places, information or persons, the State Party shall make every reasonable effort to demonstrate to the Subcommittee, through alternative means, its compliance with this Protocol]].

(p. 825) Mexican Draft (13 February 2001)13

Article 16

  1. 1.  In order to enable the Sub-Committee to fulfil its mandate as set out in Article 15, States Parties undertake to:

    1. (a)  Facilitate contact between the Sub-Committee and national mechanisms;

    2. (b)  Receive the Sub-Committee in their territory when required;

    3. (c)  Implement the recommendations of the Sub-Committee.

  2. 2.  The Sub-Committee may request any information from national mechanisms that may enable it to assess needs and the measures to be taken to strengthen the protection of persons deprived of their liberty against torture and other forms of cruel, inhuman or degrading treatment or punishment, including information concerning the number and location of places of detention, the persons deprived of their liberty and their treatment.

10  EU Draft (22 February 2001)14

Article 13 (old 12 revised)

  1. 1.  The Sub-Committee and the State Party shall cooperate with a view to the effective fulfilment of the mission. In particular, the State Party shall provide the Sub-Committee with:

    1. (a)  Unrestricted access to all information, deemed relevant by the Sub-Committee, concerning the number of persons deprived of their liberty, in accordance with Article 16 of the Convention, as well as the number of places and their location;

    2. (b)  Unrestricted access to all information, deemed relevant by the Sub-Committee, concerning the treatment and the conditions of detention;

    3. (c)  Access to and freedom of movement within any territory under its jurisdiction and control for the conduct of the mission;

    4. (d)  All information deemed relevant by the Sub-Committee to the effective conduct of the mission, including in particular on any person or places referred to in Article 3 of the Protocol;

    5. (e)  Access to and within any place referred to in Article 3 of the Protocol;

    6. (f)  Access to persons referred to in Article 3 of the Protocol, and the opportunity for private interviews with them;

    7. (g)  The opportunity to communicate freely with any person whom they believe can supply relevant information.

  2. 2.  With regard to a particular visit, the obligations referred to under paragraph 1 shall be implemented in a manner consistent with national law and professional ethics complimentary to international human rights standards.

2.2  Analysis of Working Group Discussions

11  During the first session of the Working Group, held from 19 to 30 October 1992, Article 12 was discussed under the fourth basket of issues ‘Operation of the system’.15 One of the issues raised during the discussion was the access to information. Several delegates (p. 826) noted that information on specific persons might be subject to laws on privacy and data protection or the rules of professional ethics. Some felt that these paragraphs (paragraphs 2 (b), (f), and 3) should be redrafted to reflect the corresponding principles of the ECPT. One delegation was of the opinion that the consent of the person to be interviewed was essential, although a presumption of consent might be created except where the person specifically refused consent. It also noted particular concerns about the legal capacity of minors and mental patients to consent. Another delegation indicated that the aim of the provision was to protect the individual against abuse of private or personal information, rather than the State or public authority, and the provision should state the right to privacy and international standards relating thereto.16

12  At its third session from 17 to 28 October 1994, the Working Group continued to consider Article 12. During the discussions, the need to provide a delegation of the SPT with unrestricted access to the places of detention was once again strongly emphasized.17

13  During the sixth session of the Working Group from 13 to 24 October 1997, the Chairperson-Rapporteur once again invited delegations to discuss Article 12.18

14  The representative of the Netherlands pointed out that the article in question dealt with operational guidelines and not with questions of principle and, as such, should neither contain too many details nor refer to the issue of prior consent to receive missions. The representative of China expressed full support for the given proposal, stating that nothing should interfere with State sovereignty. The observer for the APT favoured a text drafted in language as close as possible to that of Article 12 as contained in the Costa Rica Draft of 1991. He pointed out that Article 12 would be one of the cornerstones of the new instrument and would allow the SPT to gain a full and clear understanding of the situation in the country visited, without which no helpful recommendations could be made. As a matter of fact, the visiting delegation must have the rights to travel without restriction to any place of detention, to enjoy unlimited access to such places and to interview detainees without witnesses. In his opinion, legitimate interests of States to restrict visits should be addressed in Article 13. Furthermore, he cautioned against lowering existing international humanitarian standards, such as the Third and Fourth Geneva Conventions. He opposed the granting of such rights in accordance with national laws, because every country had laws limiting access to detainees and providing, at least for certain categories of persons, that visits must be supervised. The observer for AI found that Article 12 was one of the most essential Articles and that the preventive effect of the OP could only be maximized if the SPT was able to visit any part of any detention facility and speak privately with detainees. The observer for the ICRC stated that access to all places and persons, together with the possibility of private talks and repeated visits, were essential conditions for a visit by his organization.

15  In the course of the discussion, the observer for Sweden proposed that the drafting group should return to the original version of Article 12 as proposed by Costa Rica in 1991. This view was supported by the representatives of Argentina, Brazil, Canada, (p. 827) Denmark, Dominican Republic, France, Italy, South Africa, Uruguay, and the observers for Australia, Finland, Norway, and Switzerland as well as for AI and the ICRC.19

16  At the tenth plenary meeting on 22 October 1997, the Chairperson of the drafting group reported on the group’s attempt to finalize Article 12, which—unfortunately—could not be done until the end of the sixth session of the Working Group.20 Upon the proposal by the Chairperson-Rapporteur, the Working Group decided to continue its work on the draft OP by considering Article 12 at its seventh session from 28 September to 9 October 1998.21

17  It was generally felt that Article 12 was of crucial importance to the whole document since it contained references to the basic commitments that States would accept by ratifying the OP. The purpose of this article was therefore to define what host governments should offer the SPT in terms of cooperation, information, and assistance. The general approach of all delegations was that the contents of the present Article 12 could be reduced to several core elements of the visits, including access to the territory, provisions of information, access to places of detention, and access to individual persons, as well as the opportunity for private interviews with such individuals and the opportunity to communicate with persons who were in a position to supply relevant information.

18  Regarding the issue of domestic laws and regulations, it was the common understanding that all visits should be effected in the framework of or in accordance with the national legislation of host countries. However, this legislation should be consistent with international law. It was emphasized that national law or regulations should not be used in order to hinder the fulfilment of the missions or visits. It was, therefore, felt that the drafting of a reference to domestic law, if needed, should be made in a balanced way.

19  However, the delegations had still failed to arrive at a final text of Article 12. Thus, the text of Article 12 was included in Annex II to the seventh report of the Working Group to serve as a basis for future work.22 In addition, the Chairperson of the Working Group also referred to three nota benes. First, there was an understanding that Article 12 has a close relationship with Article X23 dealing with national legislation, inter alia, with regard to issues of safety and privacy. It was understood that Article 12 may have to be modified based on the terms of Article X. Second, the issue was raised about gaining access to territory which is not under a State party’s jurisdiction but under its de facto control. Third, the protection of persons who have communicated with the SPT will be addressed in a separate Article.24 The question of where to place the reference to national legislation—in Article 12 or elsewhere in the text—had not been definitively settled during the discussions at the seventh session.

20  During the eighth session of the Working Group from 4 to 15 October 1999, the scope of cooperation envisaged between the States parties and the SPT was discussed under Article 12. Some delegations pointed out that their constitutional requirements (p. 828) and/or their national legislation could prevent them from giving the SPT free access to all types of information or places. Restrictions in national legislation could also limit the possibility of the SPT to require testimony from detained persons or to interview prisoners ‘without witnesses’.25 It was emphasized by some delegations that it was a prerequisite to establish a framework for the normal work of the SPT, including such elements as freedom of movement and access to all relevant information, places, and persons.

21  In the course of the Working Group’s considerations on Article 12, some delegations insisted that if an Article X on national legislation were included in the Protocol, they might be able to accept Article 12(1) as drafted. A number of others indicated that they opposed a separate Article X as it would undermine the objectives of the Protocol. All delegations agreed that paragraph 2 required further development, and as many divergent views had been expressed so far, the whole texts of Articles 12 and X were put in square brackets.26

22  In the proposal presented by the Chairperson-Rapporteur, the mandate of the SPT was described in Part III, including three main areas: visits to places of detention, technical assistance, and cooperation for the prevention of torture with relevant UN organs as well as international, regional, and national institutions. Article 12 set out the obligations of States vis-à-vis the SPT.27 During the debate on the proposal, several delegations, among them the delegation of the United States, found that the foreseen global reach of the SPT was impractical. Moreover, it stated that constitutional considerations such as appropriate restrictions on grants of authority for access to persons and places had not been accommodated.28 The delegation of Japan questioned why the article regarding so-called ‘unrestricted access’ had been kept in the proposal.29 Similarly, the Arab Group was not in favour of a SPT endowed with mandatory authority to visit States without their explicit consent.30 However, most of the delegations supported the Chairperson-Rapporteur’s proposal.

23  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.31 The fairly far-reaching obligations of States parties under Article 12 certainly contributed to the fact that so many States voted against the draft OP in the Working Group, the Commission, and ECOSOC.32

3.  Issues of Interpretation

3.1  The Controversial Nature of Article 12 OP

24  The travaux préparatoires reveal that Article 12 OP was one of the most controversial provisions during the drafting of the Protocol. The discussions primarily concentrated on the question of prior consent to country missions,33 unannounced visits to places of detention, and private interviews with detainees. Article 10(1) of the original Costa Rica Draft of 1980 had explicitly provided for the right of the visiting body ‘to visit in all circumstances and without previous notice any place of detention within the jurisdiction of the State Party’.34 (p. 829) The ECPT does not contain an explicit provision for unannounced visits, but Article 8(2)(b) requires States parties to provide the CPT with ‘unlimited access to any place where persons are deprived of their liberty, including the right to move inside such places without restriction’. This provision has been interpreted by the CPT as authorizing it to carry out both announced and unannounced visits.35 That the CPT may ‘at any time visit any place’, a formulation to be found both in Article 8(1) ECPT and in Article 12(1) of the revised Costa Rica Draft 1991, underlines this interpretation.

25  In the Working Group, two different views emerged. One group of States argued, in line with the ECPT, that Articles 12 and 14 were of crucial importance to the entire Protocol, as they contained basic commitments of States necessary for the effective implementation of the SPT’s tasks. Other delegations argued, however, that the SPT was always bound to comply with relevant domestic laws and regulations which might restrict unlimited access to places of detention, unannounced visits, and private interviews with detainees.36 Since domestic laws usually contain limits of the general public to visit places of detention and provide for supervision of any communication with detainees, above all with pre-trial detainees, the mere existence of such laws might be misused by governments seriously to restrict the fact-finding by the SPT.37 Governments could always refer to their obligation under domestic law to provide for the security of the visiting delegation and to ensure that its data protection laws are not violated in the course of private interviews. On the other hand, to visit a detention facility without being able to speak in private with detainees who, if they actually were subject to torture before, would always be afraid of reprisals if prison guards or any other public officials were present during the interview, simply does not make much sense. It would, in effect, be counterproductive as the fact-finding would reveal a distorted picture.38

26  Nevertheless, no consensus could be reached between these different views, and the relevant provisions in Articles 12 and 14 OP are, therefore, unclear and in need of interpretation, taking into account the object and purpose of the Protocol, and the experience of the CPT, the ICRC, and similar visiting bodies, as well as the fact that no reference to national laws and regulations was included in the OP, as proposed by some delegations. On the other hand, Article 36(a) OP, which is related to the special privileges and immunities accorded to members of the SPT, contains an explicit obligation of SPT members to respect the laws and regulations of the visited State.39

(p. 830) 3.2  Obligation of States Parties to Allow Country Missions and Unannounced Visits to Places of Detention

27  Article 12(a) only repeats the obligation of States parties under Article 4 OP to allow missions to their territory, to receive the SPT, and to ‘grant it access to the places of detention’, as defined in Article 4. Whether these missions may be unannounced, is not explicitly spelled out in Article 12. It is quite clear, however, that country missions to States parties have to be announced beforehand in order to make all necessary arrangements (like for example prepare for visas or visa waivers).40 Article 14(1)(c) OP requires States parties to grant the SPT ‘unrestricted access to all places of detention’, subject only to certain objections in exceptional circumstances, as spelled out in Article 14(2) OP. In light of the object and purpose of the Protocol, taking into account the relevant practice of the CPT, we are of the opinion that ‘unrestricted access’ also includes the right of the SPT to conduct unannounced visits to any place of detention. If the SPT had to announce in advance which places of detention it was to visit, both the preventive effect and the fact-finding purpose would be lost, because the authorities would be enabled to prepare the respective places of detention, remove detainees to other places,41 instruct detainees and prison guards what to tell to the visiting delegation, clean up dirty and overcrowded detention facilities, destroy or remove documents, etc.42

28  According to the SPT’s mission reports that have been published so far, the SPT delegations in some cases have been granted unrestricted access to all the places, installations, and facilities they wanted to visit as well as to all information they requested; at the same time they have been given the opportunity to interview all persons deprived of their liberty in private, all in full accordance with the Protocol.<