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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.13 Obligations of the Subcommittee Concerning Country Missions

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, 2022. All Rights Reserved.date: 29 June 2022

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

(p. 834) Article 13  Obligations of the Subcommittee Concerning Country Missions

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

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

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

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

1.  Introduction

While Articles 12 and 14 contain obligations of States parties to facilitate country missions and visits to places of detention by the SPT, Article 13 OP contains corresponding SPT obligations regarding the conduct of missions and visits. Taking into account the main objective of the Protocol, namely to establish a system of regular and preventive visits to places of detention,1 and the guiding principles of impartiality, (p. 835) non-selectivity, universality, and objectivity,2 the SPT shall establish a programme of regular missions,3 at first by lot. It shall notify the States parties of this programme in order to enable the governments concerned to make the necessary practical and logistical arrangements for the country missions. The fact that country missions are not unannounced is not only a concession to the Member States, but also constitutes a practical precondition for the smooth operation of such a mission, as is also the practice of the CPT.

In addition to regular missions, the SPT may also conduct follow-up missions. As a general rule, which is also contained in Article 7(2) ECPT, missions shall be conducted by at least two members of the SPT and, if needed, by experts selected from a roster which is kept by the Office of the UN High Commissioner for Human Rights. The State party concerned may oppose the inclusion of a specific expert in the delegation, but not of a member of the SPT.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)4

Article 8

  1. 1.  The Committee shall be responsible for arranging visits to places of detention subject to the jurisdiction of the States Parties to the present Protocol.

  2. 2.  The Committee shall establish a programme of regular visits to each of the said States Parties and shall arrange such further visits as may appear necessary from time to time.

Article 9

  1. 1.  The Committee may nominate as its delegates to carry out such visits one or more persons being members of the Committee or members of a panel of qualified persons chosen by the Committee from among the nationals of the States Parties to the present Protocol.

  2. 2.  Members of the said panel shall be nominated for periods of three years. Their names shall be communicated to the States Parties to the present Protocol.

  3. 3.  A State Party may exceptionally and for confidential reasons given confidentially to the Committee declare that a particular delegate will not be acceptable as a visitor to its territory.

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 authorized to visit in all circumstances and without previous notice any place of detention within the jurisdiction of the State Party.

(p. 836) Revised Costa Rica Draft (15 January 1991)5

Article 8

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

  2. 2.  The Subcommittee shall postpone any such mission if the State Party concerned has agreed to a visit to its territory by the Committee against Torture pursuant to Article 20 paragraph 3 of the Convention.

Article 10

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

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

Article 11

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

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

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.

Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)6

Article 8

The Sub-Committee shall [undertake missions] [establish a programme of missions] to States Parties [based on the criteria capable of guaranteeing the principles of non-selectivity, impartiality, objectivity, transparency and universality] [based on criteria consistent with the principles set out in Article 3] [Apart from programmed missions, it shall also undertake other missions as appear to it to be appropriate].

[Those missions shall be] [mutually agreed between the Sub-Committee and the State Party concerned, in a spirit of cooperation] [undertaken by the express consent of the State Party concerned].

[Without prejudice to the provisions of Article 1], [the modalities for carrying out each mission shall be mutually agreed between the Sub-Committee and the State Party concerned, in a spirit of cooperation] [the Sub-Committee and the State Party (p. 837) concerned shall engage in consultation in order to determine the modalities of the mission].

[In preparation for such a mission], the Sub-Committee shall send a written notification to the Government of the State Party concerned of its intention to organize a mission [together with a detailed plan of the mission] [and after consultations with the State Party on the modalities of the mission]. [After such notification], the Sub-Committee may at any time visit any place referred to [in its detailed plan after a written agreement is given by the said Government] [in Article 1 paragraph 1].

Consolidated Articles 10 and 11

  1. [1.  The missions/[visits] shall be carried out by at least two members of the Sub-Committee. [As a general rule] members of the Sub-Committee shall conduct their missions/[visits] to the State Party concerned [with] [without] the assistance of experts.

  2. 2.  [In exceptional cases] the Sub-Committee may, if it considers it necessary in order to carry out its tasks efficiently, be assisted by experts known for their professional knowledge and experience in the areas covered by this Protocol.

[Those missions shall be] [mutually agreed between the Sub-Committee and the State Party concerned, in a spirit of cooperation] [undertaken by the express consent of the State Party concerned]. (From Article 8 paragraph 2)

[Without prejudice to the provisions of Article 1], [the modalities for carrying out each mission shall be mutually agreed between the Sub-Committee and the State Party concerned in a spirit of cooperation] [the Sub-Committee and the State Party concerned shall engage in consultation in order to determine the modalities of the mission.] (From Article 8 paragraph 3)

  1. [3.  In order to establish a pool of experts available to the Sub-Committee, each State Party may propose to the Sub-Committee a list of [no more than five] persons who [may] [shall] be its nationals.]

  2. [4.  When preparing a mission the Sub-Committee will select experts from this pool and [may] complete the delegation with experts proposed by the United Nations Centre for Human Rights and/or the United Nations Crime Prevention Branch or from amongst the existing staff of the United Nations and its specialized agencies.]

  3. 5.  No member of the delegation, with the exception of interpreters, may be a national of the State to be visited. The conduct of the delegation and of all of its members, shall be bound by the criteria of independence, impartiality, objectivity and confidentiality.

  4. 6.  Experts to a mission shall be subordinate to and assist the Sub-Committee. They shall in all respects act on the instructions and under the authority of the Sub-Committee. [They shall in no case undertake any missions by themselves under this Protocol.]

  5. 7.  The names of the experts and interpreters selected by the Sub-Committee to assist a particular mission shall be specified in the notification under [Article 12 paragraph 1] [Article 8 paragraph 1].

  6. 8.  A State Party may, [exceptionally] [and for reasons given confidentially], [declare] [decide] that an expert or interpreter assisting the Sub-Committee may not take part in the mission to the territory under its jurisdiction.]

(p. 838) Text of the Articles which Constitute the Outcome of the Second Reading (2 December 1999)7

Article 13 [consolidated 10 and 11]

  1. 1.  Missions should be carried out by at least two members of the Subcommittee, assisted by interpreters if necessary. If needed, the Subcommittee may be assisted by experts.

  2. 2.  The Subcommittee shall upon deciding the composition of the mission take into account the particular objectives of the mission.

  3. 3.  (a) The Subcommittee shall consult confidentially the State Party concerned, in particular regarding the composition and size of the mission other than with regard to the participating members of the Subcommittee.

    1. (b)  The State Party concerned may oppose the inclusion of an expert or interpreter in the mission to the territory under its jurisdiction, whereupon the Subcommittee shall propose alternatives.

  4. 4.  No member of the delegation, with the exception of interpreters, may be a national of the State to be visited. The conduct of the delegation and of all of its members shall be bound by the criteria of independence, impartiality, objectivity and confidentiality.

  5. 5.  Experts shall be subordinate to and assist the Subcommittee. With regard to a mission, they shall in all respects act on the instruction of and under the authority of the Subcommittee. They shall in no case undertake any missions by themselves under the present Protocol.

Article 14

  1. 1.  In order to establish a list of experts available for the Subcommittee, each State Party may propose no more than five national experts, qualified in the areas covered by the present Protocol, giving due consideration to gender balance.

  2. 2.  As needed, the United Nations and specialized agencies may also propose experts to be included on that list.

  3. 3.  The Subcommittee will annually notify the States Parties of the comprehensive list of experts.

  4. 4.  In special cases, where specific knowledge or experience is required for a particular mission, and such knowledge or experience is not available on the list of experts, the Subcommittee may include in a mission an expert who is not on the list.

  5. 5.  In selecting experts for a mission, the Subcommittee shall give primary consideration to the professional knowledge and skills required, taking into account regional and gender balance.

Mexican Draft (13 February 2001)8

Article 23

  1. 1.  A State Party to the present Protocol may at any time declare under this Article that it agrees to receive a delegation of the Sub-Committee to carry out, in accordance with the present Protocol, visits to any territory under its jurisdiction where persons (p. 839) deprived of their liberty by a public authority or at its instigation or with its consent or acquiescence are or may be held.

  2. 2.  The Sub-Committee shall establish, by lot, a programme of visits to all States Parties making the declaration provided for in the preceding paragraph.

  3. 3.  Such visits may be conducted jointly with the national mechanism.

  4. 4.  Visits shall be conducted by at least two members of the Sub-Committee. They may be accompanied by experts of demonstrated professional experience and knowledge in the fields covered by the present Protocol and shall be selected by consensus from a roster of experts prepared on the basis of proposals made by the States Parties that have made the declaration provided for in paragraph 1 of this Article, the Office of the United Nations High Commissioner for Human Rights and the United Nations Centre for Crime Prevention. In preparing the roster of experts, the States Parties concerned shall propose no more than five national experts.

  5. 5.  The delegation making the visits and its members shall enjoy the same powers and duties conferred on the national mechanism under Articles 5, 6 and 7 paragraphs 1 (a) and 2.

  6. 6.  The provisions of this Article shall enter into force when five States Parties to the present Protocol have made the declaration provided for in paragraph 1 of this Article. such declarations must be deposited by States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such declarations shall not become effective until six months after their notification.

EU Draft (22 February 2001)9

Article 9 (old 8 revised)

  1. 1.  The Sub-Committee:

    1. (a)  Shall establish on the basis of a transparent procedure, a programme of regular missions to all States Parties. These missions may also include follow-up missions;

    2. (b)  Shall also undertake such visits or missions as appear to be required in the circumstances and based on information received by the Sub-Committee and assessed by it as credible, with a view to furthering the aims of this Protocol;

    3. (c)  Shall after a mission or a visit advise and assist the State Party in assessing the needs and appropriate measures for strengthening the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment;

    4. (d)  May make recommendations to the State Party on the mandate, the competence and the effective functioning as well as other relevant activities of an established national mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment, in accordance with Article 15;

    5. (e)  Shall transmit requests from a State Party for technical assistance and technical cooperation as well as facilitate the provision of such cooperation from the relevant United Nations bodies such as UNHCR, UNDP, ODCCP, UNICEF and UNIFEM.

  2. 2.  The Sub-Committee shall send a written notification to the Government of the State Party concerned of its intention to organize a mission.

  3. (p. 840) 3.  Before a mission is carried out, the Sub-Committee and the State Party concerned shall, if either of them so requests, enter into consultations with a view to agreeing without delay on the practical arrangements for the mission. Such consultations on the practical arrangements for the mission may not include negotiations on the obligations of a State Party under Articles 3 or 13.

2.2  Analysis of Working Group Discussions

During the first session of the Working Group, held from 19 to 30 October 1992, the then Articles 8, 10, 11, and 12 of the revised Costa Rica Draft of 1991 were discussed within the fourth basket of issues, ‘Operation of the system’.10

10  As to Article 8, and specifically the question of which kinds of visits the SPT should conduct, some delegates found that the programme of regular, preventive visits was the primary aim of consideration. However, it was felt that such a system was not enough by itself and that specific or ad hoc visits should be foreseen. Others felt that a clearer textual distinction should be drawn between the regular and the specific visits.11

11  One delegate distinguished between the words ‘visit’ and ‘mission’, on the basis that a visit was restricted to places of detention, while a mission might have other purposes to accomplish in a State. Another point was made that the programme of regular or fixed visits might lack responsiveness to changing circumstances and resource needs and that flexibility of administration could be an important attribute. A final suggestion was that notification of visits should be required.

12  As to Article 10, another issue raised during the discussions was the composition of the missions as such. Some delegations found that the need for experts to assist the mission was debatable, given that the members of the SPT themselves were to be experts in the relevant fields. Various other comments were raised regarding the rights and duties of such experts; the need to clarify the way in which they would be identified and selected, as well as what their specific functions would be.

13  With regard to Article 11, one delegation felt that care must be given when selecting the experts in order to assess their qualifications in such a way as to complement the qualifications represented by the members of the SPT. Several members of the Working Group questioned the authority given to a State party, by virtue of Article 11(2), to exclude a person from taking part in a mission.

14  Regarding Article 12, the issue of notification was heavily discussed. Several delegations made the point that a notification to a State of an upcoming mission might not be adequate in that it would not permit the State, as required by the OP, to ensure the availability of all facilities required for the mission. It was discussed whether such a notification should remain indefinitely valid or be limited to a certain period of time. Some delegations were concerned that specific notice of the time and places of a visit might be conducive to abuse. One delegation found that agreement of the State concerned should be required for each visit of the SPT, while others were of the opinion that this would undermine the purpose of the Protocol as such. However, the observation was made that a lack of notice could generate delay and difficulties in ensuring access to the places to be visited.

(p. 841) 15  In the course of its second session from 25 October to 5 November 1993, the Working Group continued to consider Article 8. As to its paragraph 1, some delegations, referring to the ECPT, were in favour of replacing the word ‘missions’ with the word ‘visits’. Most delegations, however, preferred to maintain the distinction between the two notions, as it was CPT practice to refer to the word ‘mission’ in the case of a CPT-delegation entering a State territory and to refer to the notion ‘visit’ in the case of such a delegation visiting any one place of detention.12

16  With regard to the different kinds of missions, a number of delegations were in favour of inserting a provision allowing for non-regular and ad hoc missions. Some felt the need to specify the circumstances that could give rise to such other missions, while others found that this should be left to the discretion of the SPT.

17  As to Article 10, some delegations stated that the need for experts to assist the mission was not clearly established and there was a need to clarify the way in which they would be selected. Others felt that the presence of experts was necessary because of the workload to be carried and the flexibility required.

18  At the third session from 17 to 28 October 1994, it was felt that the issue dealt with in Article 12(1) should be addressed in the context of Article 8. Some delegations were of the opinion that consent or agreement of the State concerned should be required for each visit of a delegation of the SPT.13 Others pointed out that this would greatly diminish the preventive character of the new system and that such consent or agreement was already implied in the ratification of the Protocol.

19  With regard to the issue of notification, one delegation, supporting the delegation of Egypt, found that the OP should explicitly provide for a ‘reasonable interval of time’ between the notification of a State concerned and the dispatch of the SPT’s mission.

20  Articles 10 and 11 were commonly considered during the third session of the Working Group. Once again, the need for additional experts to assist a delegation’s mission was doubted by several delegations. Many delegations stressed the need to have clear criteria for the selection of such experts. Some proposed that the States parties should draw up a list of experts from which the SPT could make its choice. One delegation put forward a proposal to combine Articles 10 and 11 in a single article, another one put forward a proposal to amend the two articles in order to define the functions of advisers and the circumstances in which they might be employed.

21  During the fourth session of the Working Group, held from 30 October to 10 November 1995, Articles 10 and 11 were reconsidered. The representative of the Committee against Torture emphasized the importance of having experts in a delegation. In his opinion, the selection of experts should be performed by a delegation of the SPT that was to carry out a mission to a State party, and the main criterion for their selection should be their competence. An expert should not visit his or her own country and a Government should be able to object to the visit of one or another expert without giving reasons therefor.14

(p. 842) 22  At its seventh plenary meeting, the Chairperson of the informal drafting group proposed a consolidated text for Articles 10 and 11 to serve as a basis for the second reading of the draft OP. This text had originally been proposed by the delegation of El Salvador, and had subsequently been amended to include all the views expressed during the informal drafting process.15

23  At the Working Group’s sixth session, held from 13 to 24 October 1997, a general discussion on consolidated Articles 10 and 11 was opened.16 On 16 October 1997, the observer for Sweden submitted a proposal on Article 10, having taken into account the various proposals on consolidated Articles 10 and 11 submitted at earlier sessions, the discussions held on the issues, and the original text as submitted by Costa Rica in 1991. It contained the ‘general rule’ that missions would be carried out by at least two members of the SPT, a method by which a transparent roster of experts would be established and a safeguard ensuring the integrity and impartiality of experts. It foresaw that experts were subordinate to the SPT and that a State party could exclude an expert or interpreter from taking part in a mission to territory under its jurisdiction.

24  The representative of China also submitted a proposal on Articles 10 and 11, limiting the number of experts and stating that experts should be used only in exceptional cases subsequent to permission of the State concerned. The observer for the Committee against Torture shared his experience as a member of the CPT, where at least two CPT-members had taken part in visits, always with the assistance of experts who rendered technical assistance and had no political influence.

25  On 20 October 1997, a new text of Article 10 was submitted to the Working Group by the Chairperson of the drafting group.17 In this proposal, the already proposed roster of experts was missing. Finally, Article 10 was adopted and the matter of a roster of experts was included in a new Article 10 bis. The text of the proposed Article 10 bis was then adopted by the Working Group as new Article 14.18

26  The Working Group then held its eighth session from 4 to 15 October 1999. On 14 October 1999, the Working Group had before it the consolidated texts of various proposals relating to Articles 1, 8, 12, and 13, which—after some consideration—were then accepted to serve as a basis for future discussions.19

27  During the ninth session from 12 to 23 February 2001, the issues in question were discussed with regard to the alternative draft submitted by the delegation of Mexico with the support of GRULAC contained in its Article 23. It was felt, in particular, that the frequency of visits to be carried out by the SPT and whether they should be periodical, ad hoc or both, should be subject of further considerations.20

28  In the proposal presented by the Chairperson-Rapporteur, the mandate of the SPT was discussed in Part III, where Article 13 established the different types of visits that the SPT would undertake.21

(p. 843) 29  At its fiftieth meeting on 22 April 2002, the Commission on Human Rights basically 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.22

3.  Issues of Interpretation

3.1  Types of Country Missions

30  The practice of the CPT served as a model for the drafting of Article 13 OP, which distinguishes between regular missions and follow-up missions.

31  In practice, the SPT (originally) referred to four types of missions: (regular) country missions, country follow-up missions, NPM advisory missions,23 and OPCAT advisory missions. While NPM advisory missions had a strong focus on assisting the NPM and/or the State party concerned regarding the establishment/designation and effective functioning of the preventive mechanism through practical capacity-building activities, the OPCAT advisory missions were addressed to help States parties in implementing their (other) obligations set out in the Protocol. The latter were short missions, focusing on high-level talks with senior Government officials of the relevant ministries and bodies, as well as civil society representatives and any other relevant entities. However, in the course of 2015 the SPT found that ‘such categorization has at times proved limiting and has hindered [it] in the full and robust exercise of its mandate’. It therefore ‘decided to cease categorizing its visit and to formulate, from 2016, a plan best suited to the exigencies of each visit’.24 Consequently, in 2016 each country mission addressed all aspects of the SPT’s preventive mandate, in particular its two primary responsibilities of visiting places of detention and advising on the establishment or operation of the NPMs. In the view of the SPT, ‘the new methodology magnified the practical impact of the visits, enabling the Subcommittee to better fulfil its mandate under Article 11 (1) (b) of the Optional Protocol’.25

3.2  Programme of Country Missions

32  That the first programme of regular missions was to be established by lot was even included in Article 13(1) OP in order to underline the non-selectivity of the SPT. However, this only applied to the initial (annual) programme. Non-selectivity and impartiality does not mean that there must be an equal number of regular missions to each State party, irrespective of its size, the number of places of detention, and the conditions therein. On the contrary, to decide the frequency of missions on an equitable basis and in a non-selective manner means precisely to take these criteria into consideration, but not to target specific countries on arbitrary grounds. Moreover, the SPT shall take into account that under the Protocol, regular preventive visits are primarily the responsibility of NPMs, and that the experience of such mechanisms shall also be taken into consideration when deciding about further annual programmes of country missions.

(p. 844) 32  The Maldives, Mauritius, and Sweden were the first three countries drawn by lots that should be visited by the SPT; they had been visited by the SPT during 2007 and early 2008. Already in the course of its initial period of work, the SPT began to develop certain guidelines on country missions. Consequently, it selected the States to be visited by a reasoned process, with reference to the principles laid down in Article 2 OP, taking into account various factors like the date of ratification of the Protocol, the establishment of a NPM, the geographical distribution of countries, the size and complexity of a State, and regional preventive monitoring as well as urgent issues reported.26 Due to serious budgetary constraints, however, the SPT had to limit its programme of visits to three per year during its first years. On 18 January 2011, the SPT finally published its first Guidelines in relation to visits to States parties,27 which had been revised later on in 2014.28

33  According to Article 13(2), the SPT ‘shall notify the States Parties of its programme in order that they may, without delay, make the necessary practical arrangements for the visits to be conducted’. The requirement of prior notification of a country mission is the result of a compromise during the drafting process; however, it should not be confused with the requirement of prior consent as demanded by some governments. Apart from constituting a certain concession to the Member States prior notification is necessary for the smooth functioning of the mission.

34  In practice, the programme of missions is being determined by the SPT in plenary on the advice of its regional teams. Until 2016, the programme was published afterwards without specifying any concrete dates of missions. In the course of 2016, the SPT decide