8 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
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