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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.14 Obligation of States Parties to Facilitate Visits by the Subcommittee to Places of Detention

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 — Right to effective remedy — Detention — Reparations — Treaties, interpretation

(p. 848) Article 14  Obligation of States Parties to Facilitate Visits by the Subcommittee to Places of Detention

  1. 1.  In order to enable the Subcommittee on Prevention to fulfil its mandate, the States Parties to the present Protocol undertake to grant it:

    1. (a)  Unrestricted access to all information concerning the number of persons deprived of their liberty in places of detention as defined in article 4, as well as the number of places and their location;

    2. (b)  Unrestricted access to all information referring to the treatment of those persons as well as their conditions of detention;

    3. (c)  Subject to paragraph 2 below, unrestricted access to all places of detention and their installations and facilities;

    4. (d)  The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the Subcommittee on Prevention believes may supply relevant information;

    5. (e)  The liberty to choose the places it wants to visit and the persons it wants to interview.

  2. 2.  Objection to a visit to a particular place of detention may be made only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit. The existence of a declared state of emergency as such shall not be invoked by a State Party as a reason to object to a visit.

1.  Introduction

Article 14 OP is closely related to Article 12 OP and further defines the obligation of States parties to cooperate with the SPT in facilitating its preventive visits to places of detention. During the discussions in the Working Group, this Article proved to be just (p. 849) as controversial as Article 12 OP.1 In particular, certain States objected to the right of the SPT to conduct unannounced visits to places of detention and private interviews with detainees. Since their attempts to make access of the SPT to places of detention and its right to conduct private interviews with detainees subject to national laws and regulations failed, they finally voted against the OP in the Working Group, the Commission on Human Rights, and ECOSOC.2 On the other hand, no explicit reference to unannounced visits to places of detention is included in Articles 12 or 14 OP, and Article 14(2) contains the right of States parties to object to a visit of a particular place of detention on certain urgent and compelling grounds, similar to Article 9 ECPT.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Costa Rica Draft (6 March 1980)3

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)4

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 (p. 850) 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. (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.

Article 13

  1. 1.  In the context of a mission, the competent authorities of the State Party concerned may make representations to the Subcommittee or its delegation against a particular visit if urgent and compelling reasons relating to serious disorder in the particular place to be visited temporarily prevent the carrying out of the visit.

  2. 2.  Following any such representation, the Subcommittee and the State Party shall immediately enter into consultations in order to clarify the situation and seek agreement on arrangements to enable the Subcommittee to exercise its functions expeditiously. Such arrangements may include the transfer to another place of any person whom the Subcommittee proposed to visit. Until the visit takes place, the State Party shall provide information to the Subcommittee about any person concerned.

Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)5

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 (p. 851) 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. 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.]

Article 13

  1. 1.  In exceptional circumstances, in the context of a mission the competent authorities of the State Party concerned may make representations to the Sub-Committee or its delegation against a particular visit. Such representations with respect to the particular place to be visited may only be made on the grounds that [serious] disorder, [national defence, public safety, medical condition of a person and/or urgent interrogation relating to a serious crime is in progress] temporarily prevent the carrying out of the visit. The existence or [formal] declaration of a State of Emergency as such shall not be invoked by a State Party as a reason to object to a visit.

  2. 2.  Following any such representation, the Sub-Committee and the State Party shall immediately enter into consultations regarding the circumstances and seek agreement on arrangements to enable the Sub-Committee to exercise its functions expeditiously. [Such arrangements may include the transfer to another place of any person whom (p. 852) the Sub-Committee proposed to visit.] Until the visit takes place, the State Party shall provide information to the Sub-Committee about any person concerned.

Text of the Articles which Constitute the Basis for Future Work after the Second Reading (2 December 1999)6

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]].

Article 13

  1. 1.  In exceptional circumstances, [in the context of a mission,] the competent authorities of the State Party concerned may make objections to the Sub-Committee [or its delegation] against a particular visit [or a mission]. Objections may only be made on [urgent and compelling] grounds of national defence, public [or individual] safety, natural disasters, serious disorder in [the place to be visited] [places where persons are detained,] [the medical condition of a person] [or that an urgent interrogation relating to a serious crime is in progress] [which temporarily prevent the carrying out (p. 853) of a visit. The existence of a state of emergency as such shall not be invoked by a State Party as a reason to object to a visit].

  2. 2.  Following any such objections, the Sub-Committee and the State Party shall [immediately] enter into consultations regarding those circumstances and seek agreement on arrangements to enable the Sub-Committee to exercise its functions [expeditiously]. [Until the [mission or] visit takes place, the State Party shall provide information to the Sub-Committee about persons or places relevant to its [mission or] visit.]

Mexican Draft (13 February 2001)7

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 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.

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 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 (p. 854) 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)8

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

During the first session of the Working Group, held from 19 to 30 October 1992, the issues were discussed under the then Article 12 and within the fourth basket of issues ‘Operation of the system’.9

One of the issues raised during the discussion was access to information. Several delegates 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 made for cases lacking an explicit refusal of consent. The delegation also noted particular concerns regarding the legal capacity of minors and mental patients to declare their consent. Another delegation pointed out that the aim of the provision was to (p. 855) 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.10

10  With regard to Article 13 of the revised Costa Rica Draft, it was generally considered that the declaration of a ‘state of emergency’ or similar derogation from legal regularity for an extended period should not, by itself, justify the suspension of a visit under the OP. A reference was made to the corresponding Article 9 ECPT, which is more detailed in this regard and covers ‘public safety’ as a safeguard for such interests. In the course of the discussion, the observation was made that this article was in the nature of a ‘negotiated reservation’ to the Protocol, and that such reservations must be as limited as possible in order to avoid abuse. It was further suggested that the circumstances in which suspension would be possible should be limited and carefully detailed in the Protocol in order to avoid problems that could diminish the body’s effectiveness.

11  At its third session from 17 to 28 October 1994, the Working Group continued to consider Article 12.11 During the discussions, the need to provide a delegation of the Subcommittee with unrestricted access to the places of detention was once again strongly emphasized. As to Article 13, most delegations found that the conditions under which a State party might object to a visit should be explicitly defined. It was proposed that a State could only in exceptional circumstances deny the SPT access to detention facilities. These circumstances would include, for example, national security concerns, public safety, the medical condition of a person, disorder in the detention facilities, or if the visit were to coincide with an urgent interrogation relating to a serious crime.

12  During the sixth and seventh sessions (13 to 24 October 1997, 28 September to 9 October 1998) the Working Group primarily discussed Article 12.12 Regarding Article 13, it was again emphasized that representations could only be made in exceptional circumstances and with a view to a specific visit or a specific interview, not to a mission as a whole. In this regard, references were often made to Article 9 ECPT.13 As it was stated that torture was most often practised in precisely the circumstances that were listed as exceptional in Article 13, several delegations felt that if Article 13 was to be kept in the Protocol, the list of circumstances contained therein should be extremely narrow. Moreover, it was proposed to replace the term ‘may make representations’ by the term ‘may object’.

13  Upon the proposal of the Chairperson-Rapporteur, Article 13 was referred to the drafting group for further examination. As no consensus had been reached on any of the possible approaches, the drafting group had finally decided to submit to the plenary the revised text of Article 13 as proposed by the Chairperson.14 This text was based on the understanding that it was essential for some delegations to point to a close relationship between Article 13 and Article 12, in particular relating to the issue of national legislation.

(p. 856) 14  In the course of the following discussions, some delegations stated that they could only accept this proposal if their view was put on record regarding the similarity in content between Article 13 and Article 12, including the nota bene.15 On this understanding, the Working Group decided to add Article 13 to the text of Articles which constituted the basis for future work.16

15  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, whereas Article 14 listed the obligations of States regarding visits and referred to the situations in which visits could be objected to.17

16  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.18

3.  Issues of Interpretation

3.1  Unrestricted Access to Places of Detention, Information, and Documentation

17  Article 14 OP has to be read in conjunction with Article 12 and the overall principle of cooperation between the SPT and States parties, as stipulated in Article 2(4) OP.19 The general duty of States parties under Articles 4 and 12(1) to allow missions of the SPT on their territory and to grant it access to all places of detention is further defined by the obligation to grant the SPT unrestricted access to all relevant information and documentation. Among the documentation is included a full list of all places of detention and their precise location, the number of detainees in each place of detention, prison registers, incidents of torture, ill-treatment and deaths in custody, individual case files, and medical documentation.20 This duty to provide information to the SPT in advance and during its country missions derives from Articles 12(b) and 14(1)(a) and (b) OP.

18  In accordance with Article 13(2), the SPT shall notify the State party concerned of its intention to carry out a mission in order for the Government to make the necessary practical arrangements. But the Protocol, as the ECPT, does not contain any provision requiring any prior notification of the precise places of detention the SPT wishes to visit.21 Article 14(1)(e) clearly emphasizes the liberty of the SPT to choose the places it wants to visit, and Article 14(1)(c) establishes an explicit obligation of States parties to grant the SPT ‘unrestricted access to all places of detention and their installations and facilities’, subject only to the possibility of objections in exceptional circumstances under Article 14(2). Taking into account the object and purpose of preventive visits to places of (p. 857) detention, the respective practice of the CPT,22 and the discussion of Article 4 and 12 OP above, the term ‘unrestricted access’ must be interpreted as permitting unannounced visits at all times, irrespective of any national laws and regulations to the contrary.23 In fact, this is the only interpretation that is in line with the object and purpose of the Protocol as such.24 States parties have to ensure that the respective laws are modified for the purpose of granting the SPT such unrestricted access.

19  With regard to methodology and logistics, ‘the Subcommittee requests information from the State party to be visited concerning the legislation and institutional and system features related to deprivation of liberty, as well as statistical and other information concerning their operation in practice’. The information gathered is summarized in a country brief prepared by the SPT.25 Shortly before a planned country mission, the SPT tries to carry out so-called preliminary missions for preparatory purposes as often as possible and to initiate the process of dialogue with the respective authorities.26 In practice, such initial missions to States parties, conducted by some SPT members, have proven to be best suited to deliver important information about the SPT and its mandate in general as well as to stress the confidential nature of its work.27

20  Within the respective places of detention, the SPT enjoys the right of unrestricted access to all installations and facilities in accordance with Article 14(1)(c). This includes all buildings belonging to a detention facility, the cells and living quarters of detainees, isolation and punishment cells, courtyards, exercise areas, kitchens, workshops, educational and medical facilities, sanitary installations, staff quarters, etc.28 It is important that the delegation can move freely around within the place of detention and choose the rooms and facilities it wishes to see, without any surveillance by prison staff.

3.2  Private Interviews with Detainees and Any Other Person Who the SPT Believes May Supply Relevant Information

21  Most importantly, the SPT, pursuant to Article 14(1)(e), may choose the persons, including detainees, witnesses, and prison staff, it wants to interview. Under Article 14(1)(d), States parties shall grant the SPT not only the right, but the practical ‘opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the Subcommittee believes may supply relevant information’. These other persons may be alleged victims who are no longer detained, family members of detainees, witnesses, (p. 858) lawyers, doctors, prison staff, NGO and media representatives, or anybody who wishes to provide the SPT with information. However, the SPT may only conduct an interview if the detainee or other person concerned voluntarily agrees to speak with the delegation after he or she has been fully informed of the reasons for the interview and the potential risks involved. Although not mentioned in the OP, this is an important limitation on the SPT’s right to conduct interviews, which is a general rule of professional fact-finding based on the right to privacy of the person concerned and the obligation of visiting bodies to protect detainees and other interview partners against potential reprisals by police or prison staff.29 Often detainees are afraid of reprisals, and the delegation must respect such fears and refrain from putting any pressure on the person concerned. In practice, the SPT’s visiting delegations regularly enter into ‘empirical fact-finding and discussions’ not only with detainees but with various stakeholders, including officials of ministries and other governmental institutions, members of judicial or prosecutorial authorities, national human rights institutions, professional bodies, and representatives of civil society. In countries where NPMs are already existent, their members are important interlocutors as well of course.30 It gathers its information independently from various sources, ‘including direct observation, interviews, medical examination and perusal of documentation’.31

22  The term ‘private interviews’ means that no public official of the State concerned is allowed to watch the persons involved in the interview and/or to listen to their conversations. It is important that the delegation chooses a room in which the detainee feels comfortable and where the risk of being monitored is as low as possible. Usually, it is detainees themselves who