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 know best where they feel safe to conduct the interview. Rooms provided by the prison administration for such interviews shall only be accepted if no other place is available and if the detainee voluntarily agrees. Private interviews should be conducted with individual detainees and, as far as possible, not with a group of detainees. The person conducting the interview shall not be alone with the detainee, but be assisted at least by one person taking the notes and, if necessary, by an interpreter. If a detainee alleges to have been subject to torture, it is always advisable to conduct a forensic examination. Signs of torture, such as scars and wounds inflicted should, when possible, be documented by photographic means, provided that the person concerned agrees.
23 Private interviews with detainees are indispensable for an objective assessment of practices of torture and ill-treatment. After all, torture usually takes place behind closed doors, and the authorities regularly try to conceal the evidence. Since there are usually few witnesses or other available evidence, it is extremely difficult to prove torture. Detainees who allege they were subjected to torture, and who are still detained in the place of the alleged torture, are often, and with good reason, afraid of reprisals.32 As such, they would never speak openly about their experiences unless sure that their testimony was not monitored by prison staff. It is, therefore, of utmost importance that the person conducting the interview asks the detainee whether his or her allegations should be kept strictly confidential or whether they can be raised with the authorities and included in the mission report. Any agreement made regarding the extent to which allegations of torture may be made public must be voluntary and based on informed consent. No pressure, whatsoever, shall be put on the detainee. In case of doubt, the testimony shall be kept confidential.
(p. 859) 24 In September 2014, the SPT suspended its mission to Azerbaijan due to heavy difficulties encountered in carrying out its mandate under the Protocol. The delegation had been unable to visit several places of detention due to a lack of co-operation of the respective Azerbaijan authorities. Thus, given the serious breaches of the OP, the delegation found that the integrity of its visit had been impaired to such an extent that the visit had to be suspended.33 After having been denied access to places in several parts of the country where it suspected people to be deprived of their liberty by the national Security Service, the Subcommittee suspended its mission to Ukraine in May 2016. Again, the SPT delegation concluded that the integrity of the mission had been compromised to such an extent that it had to be suspended, as the SPT mandate could not be fully carried out.34 In October 2017, the SPT suspended a mission to Rwanda due to a series of obstructions imposed by authorities, such as accessing some places of detention, confidentiality of certain interviews, and over concerns that some interviewees could face reprisals.