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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part IV National Preventive Mechanisms, Art.17 Establishment of National Preventive Mechanisms

Stephanie Krisper

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: 16 May 2022

Subject(s):
Torture — Treaties, interpretation

(p. 881) Article 17  Establishment of National Preventive Mechanisms

Each State party shall maintain, designate or establish, at the latest one year after the entry into force of the present Protocol or of its ratification or accession, one or several independent national preventive mechanisms for the prevention of torture at the domestic level. Mechanisms established by decentralized units may be designated as national preventive mechanisms for the purposes of the present Protocol if they are in conformity with its provisions.

1.  Introduction

Article 17 OP repeats the obligation of States parties under Article 3 OP to maintain, designate, or establish one or several independent national mechanisms for the prevention of torture at the domestic level. The two pillar-system, which was introduced in 2001 by Mexico at a time when the discussions in the Working Group had reached a dead end, corresponds to a general rule that States have the primary responsibility under international law to respect, protect, and ensure the human rights of all people subject to their jurisdiction, whereas monitoring by international bodies of States’ compliance with their international human rights obligations is only of a complementary nature. As with its international counterpart, the Subcommittee on Prevention, the main function of NPMs consists of conducting preventive visits to all places of detention in the territory of the State party concerned and making recommendations to the relevant authorities with the aim of improving prison conditions and preventing torture and ill-treatment of detainees.

(p. 882) Further provisions on the independence and efficiency of the NPMs are contained in Article 18 OP, on the mandate and powers of the NPM in Article 19 OP, and on the corresponding obligations of States parties to facilitate preventive visits to places of detention, to implement the respective recommendations of NPMs, and to publish its annual reports in Articles 20 to 23 OP.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Mexican Draft (13 February 2001)1

Article 3

Each State Party shall establish a national mechanism at the highest possible level within one year of the entry into force of, or of its accession to, the present Protocol.

Proposal by the Chairperson-Rapporteur (17 January 2002)2

Article 17

Each State party shall maintain, designate or establish, at the latest one year after the entry into force of the present Protocol or of its ratification or accession, one or several independent national preventive mechanisms for the prevention of torture at the domestic level. Mechanisms established by decentralized units may be designated as national preventive mechanisms for the purposes of the present Protocol, if they are in conformity with its provisions.

2.2  Analysis of Working Group Discussions

On 13 February 2001, at the second meeting of the Working Group during its ninth session from 12 to 23 February 2001,3 the delegation of Mexico introduced its alternative draft, prepared with the support of GRULAC.4

There was no real discussion focusing on Article 17 (Article 3 OP) in the Working Group. However, at its third meeting, on 14 February 2001, the Working Group held a general discussion on the Mexican draft. Some delegations strongly supported the draft, emphasizing the complementary nature of the proposed national and international mechanisms. Others, however, found that no proper balance was struck between the national and the international level and feared that the latter might become subsidiary to the former. The delegations who supported the draft underlined that it constituted an improvement of the original draft by installing a two pillar-system. Being on the spot, national mechanisms would be in a better position to prevent torture and to visit facilities all over a country.5

(p. 883) 3.  Issues of Interpretation

3.1  Organizational Form of the NPM

The organizational form of an NPM is not provided for in the OPCAT. Hence, States have much freedom on the model they chose as long as they respect the minimum requirements of the OPCAT.

In the course of its mission reports, the SPT has consistently referred to the flexible approach of the OP regarding the format and structure of the NPM, but the subsequent formulation of the obligations for the States parties have become increasingly demanding: the SPT has stated that, although the OP leaves the institutional format of the NPM to the States Parties’ discretion, ‘it is imperative that the mechanism be structured and that it carries out its mandate in accordance with the Optional Protocol, as reflected in the SPT “Guidelines on national preventive mechanis’ms”.6 The SPT later added that it is imperative that the NPM’s ‘functional and operational independence is guaranteed, taking account of the Principles relating to the Status of National Institutions (“the Paris Principles”)’.7

According to the SPT, States parties ‘must choose the model they find most appropriate, taking into account the complexity of the country, its administrative and financial structure and its geography’.8 Beyond independence, the SPT ‘looks at NPMs from a functional perspective, and recognizes that just because one model works well in one country does not mean it will work well in another. What is important is that the model adopted works well in its country of operation.’9 Effective operation of the NPM is, therefore, a relevant characteristic for compliance with the Optional Protocol.

3.1.1  Meaning of ‘one or several independent national preventive mechanisms’

10  According to Article 17 OP, States Parties can also aim to have ‘several’ NPMs in place. Multiple NPMs may be based on thematic, geographic, and/or jurisdictional divisions, eg the NPMs in the United Kingdom, the Netherlands, New Zealand, and Sweden.10

(p. 884) 3.1.2  Meaning of ‘decentralized units’

11  For the case of jurisdictional division, the last sentence of Article 17 OP explicitly provides for the possibility that mechanisms established by decentralized units ‘if they are in conformity with the provisions of the Protocol’.11 This decentralized structure was opted for by, for example, Brazil and Argentina. Furthermore, the mechanisms must together fulfil the mandate of NPMs according to Articles 19 OP and 22 OP. This means foremost that every place of deprivation of liberty is subject to the monitoring of at least one NPM. Article 29, furthermore, ensures that the OPCAT is applied ‘to all parts of federal States without any limitations or exceptions’. In addition, the system of several NPMs must function in a way to ensure that recommendations are made regarding the whole system and that proposals are made to existing or draft legislation.12

3.2  Modes of Creating an NPM

12  While Article 3 OP obliges States parties to ‘set up, designate or maintain’ such a mechanism, the verbs ‘maintain, designate or establish’ are used in Article 17 OP.

3.2.1  Meaning of ‘maintain’

13  As the term ‘set up’ is synonymous with the term ‘establish’, no conflict arises. The inclusion of the term ‘maintain’ intended to cover States parties with monitoring bodies that already existed at the time of entry into force and carry out functions equivalent to those of NPMs.13 While the term ‘designate’ covers instances when the State party builds the NPM upon existing institutions, the term ‘establish’ covers a situation in which a State party creates an entirely new body to undertake NPM functions.14

3.2.2  Meaning of ‘designate’

14  To date, the majority of the States parties to the OPCAT has designated an existing institution as NPM. The majority of the latter has chosen to give this mandate to a National Human Rights Institution (NHRI).15 According to the Paris Principles, an NHRI is an institution ‘vested with competence to promote and protect human rights’.16 NHRIs have been designated as NPMs in different formats such as ombuds-institutions and human rights commissions. Some countries created a new NHRI and designated it as NPM.17

(p. 885) 3.2.3  Meaning of ‘establish’

15  To date, only some States parties to the OP have established an NPM as an entirely new institution in the country.18

3.3  Open, Transparent, and Inclusive Process

16  While there is no explicit requirement under the OP as to how States should deal with the national designation procedure, the SPT clarified quite early in its 2010 Guidelines that ‘[t]he NPM should be identified by an open, transparent and inclusive process which involves a wide range of stakeholders, including civil society’.19 According to the SPT, the selection process should also preferably be prescribed in the governing NPM legislation.20 The Paris Principles also additionally foresee that there should be a transparent process that includes civil society.21 Indeed, an open, transparent, and inclusive process enhances the credibility of the future NPM and hence its effectiveness.

17  When the process is not driven by civil society,22 but initiated by State authorities/the Government, civil society should be consulted on the choice of which organizations or individuals represent its position.23 For the future independence (especially perceived independence) and effectiveness of the body, it should aim for the participation of a wide range of stakeholders, namely representatives of the political leadership of the executive Government and relevant members of the permanent administration with technical expertise (at all applicable levels: municipal, provincial, and/or national), members of the legislature representing both Government and opposition parties, NHRIs, organizations that already carry out visits to places of detention, and national NGOs and other civil society groups.24 The broad scope of places falling under the OPCAT necessitates the inclusion of organizations working with persons in a situation of vulnerability, such as migrants, asylum-seekers, refugees, children, women, ethnic and cultural minorities, and persons with disabilities.25

18  The SPT expressed its satisfaction with the process that led to the adoption of the draft legislation setting up the NPM of Paraguay, that has been described ‘as a model for the open, transparent and inclusive participation of a wide range of stakeholders’.26

(p. 886) 3.4  Operational Autonomy

19  The SPT stated in its Guidelines that ‘[t]he operational independence of the NPM should be guaranteed’27 and ‘[t]he NPM should enjoy complete financial and operational autonomy when carrying out its functions under the Optional Protocol’.28 With reference to these paragraphs, the SPT noted in its Compilation of Advice on ‘organizational issues regarding national preventive mechanisms that form part of a national human rights institution’ that ‘Article 18 (1) of the Optional Protocol is unequivocal on the need for the State party to allocate specific resources to national preventive mechanism work, so as to guarantee the operational independence of the mechanism’.29 It further stated that ‘this implies that national preventive mechanisms must be capable of acting independently, not only from the State but also from the national human rights institution’.30

20  In its Guidelines, the SPT stated that, ‘[w]here the body designated as the NPM performs other functions in addition to those under the Optional Protocol, its NPM functions should be located within a separate unit or department, with its own staff and budget.’31 In its Third Annual Report, the SPT argued similarly, stating that ‘[w]here existing institutions such as the Ombudsman or the national human rights institution (NHRI) are designated as national preventive mechanisms, a clear distinction should be made between such bodies, which generally act in response to specific situations, and national preventive mechanisms, which have preventive functions’,32 making the creation of a subunit necessary.33

21  For the sake of institutional visibility, the SPT also recommended that the activities of the NPM be clearly separated from those of the NHRI.34 When the NHRI implements activities under the NPM mandate, it ‘should be clearly stated as such in all visits, meetings, written communications with the authorities, penitentiary and other institutions (p. 887) and individuals’.35 The SPT further recommended that, to the greatest extent possible, the NPM ‘be represented in its own right at institutional meetings that concern its mandate so that it may bring to bear its experience and the preventive focus of its work’.36

22  Indeed, the OP and SPT Guidelines ‘foresee two different and separate structures serving two different mandates and preserving a level of autonomy’.37 The SPT added in its Compilation of Advice:

While the national preventive mechanism is charged with the core national preventive mechanism functions, this does not preclude other departments or staff of the national human rights institution from contributing to its work, as that cooperation might lead to synergies and complementarity. For instance, the number of complaints received by the institution in relation to a specific place of detention may inform the work of the mechanism. Similarly, the mechanism could refer some cases to the institution for litigation or other action.38

Indeed, the advantages of NHRIs as NPMs are the availability of broader expertise and a human rights-based approach within the institution as well as the number or type of complaints received by the NHRI as a possible criterion for the NPM’s prioritization of visits.39

23  In order to guarantee operational independence of an NPM that is part of a larger organization, ‘[t]he relationship between the national preventive mechanism function and the rest of the organization, the working methods and the safeguards applicable to preserve the independence of that function should be clearly set out in the relevant internal regulations.’40

24  The autonomy of the NPM unit does not change the fact that the final decision-making power for the NPM often rests with the Ombudsman/deputy Ombudsman, the Human Rights Commission, or a human rights commissioner.41 However, even when the NPM has a proper head, the SPT has encountered situations in which placement of an NPM as a section, for instance under a legal department, has jeopardized the autonomy of the mechanism’s decision-making process.42 Therefore, the SPT recommends in its Compilation of Advice that,

[i]n order to guarantee the operational autonomy of the national preventive mechanism and a ‘flat’ relationship between the national human rights institution and the national preventive mechanism, the Subcommittee would recommend placing the mechanism as a parallel structure at the level of the head of the institution and abstaining from situations in which the mechanism is placed under several departments, which diminishes its visibility.43

(p. 888) 25  However, this raises more issues of concern: the SPT found that when the NPM is legally placed under the Ombudsman, the support team—employed by the Ombudsman’s office—is dependent on his/her instructions and not on the collegial body of the NPM. This controverts, according to the SPT, Article 18(1) OP, which states that States parties shall guarantee the independence of the NPM personnel.44

26  As to the content of the autonomous decision-making, the SPT concretized in its Compilation of Advice that ‘[u]ltimately, the organizational chart should reflect the requirements of the Optional Protocol, which specify that the national preventive mechanism should have operational autonomy with regard to its resources, workplan, findings, recommendations and direct, and, if needed, confidential contact with the Subcommittee.’45 Regarding resources, the SPT recommends providing the NPM with ‘operational’ discretion regarding the use of appropriate financial, human, and logistical resources.46

27  Also, as a result of the interpretation of the Paris Principles, the NPM should ‘have authority to choose and employ its own staff based on requirements and criteria it alone determines’.47 Furthermore, to ensure operational autonomy, the NPM should ‘also have exclusive authority to develop its own rules of procedure without external modification’.48

3.5  Deadline

28  According to Article 17 OP, the State party must designate or establish one or several NPMs ‘at the latest one year after the entry into force of the present Protocol or of its ratification or accession’. The twenty States that became parties to the Protocol before its international entry into force on 22 June 200649 must have had established an NPM at the latest by 22 June 2007.50 For the other States that ratified or acceded to the Protocol at a later date, ‘[t]he NPM should be established within one year of the entry into force of the Optional Protocol for the State concerned, unless at the time of ratification a declaration has been made in accordance with Article 24 of the Optional Protocol.’51 Article 24 OP enables the States parties to postpone the implementation of this obligation for a maximum of three years, and the CAT Committee may extend that period for another two years.52

(p. 889) 29  The OPCAT does not specify any procedure for the act of international designation. In practice, many States parties have provided a list of their NPMs to the UN.53 Other States parties have notified the SPT of their NPM choice through direct correspondence.54 While the OP is silent on the point of whether the State has an obligation to inform the SPT that it has designated a NPM,55 the SPT noted that it should be ‘promptly’ notified by the State party of the body which has been designated as the NPM.56 Indeed, States should view the obligation to inform the SPT of the choice of their NPM as part of maintenance of an on-going relationship between the SPT, the State, and the NPM.57

30  Contact with the SPT is also of relevance in the time available until the end of the one-year deadline for the SPT to provide advice and assistance on NPM establishment according to Article 11(b)(i) OP. At each Subcommittee session, the regional teams review progress towards the fulfilment of each State party’s obligation, making appropriate recommendations to the plenary on how the Subcommittee can best advise and assist the States parties concerned.58 In its Annual Reports, the SPT has become increasingly concerned regarding the number of States parties that have not complied with the deadline under Art 17 OP.59 In its twenty-ninth session in June 2016, the SPT publicized a list of States parties whose compliance with obligations set out in Article 17 OP is substantially overdue.60

Stephanie Krisper

Footnotes:

1  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its ninth session [2001] UN Doc E/CN.4/2001/67, Annex I.

2  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its tenth session [2002] UN Doc E/CN.4/2002/78, Annex I.

3  E/CN.4/2001/67 (n 1).

4  See above Art 3 OP, 2.1. For the analysis of Working Group discussions see above Art 3 OP, 2.2.

5  E/CN.4/2001/67 (n 1) paras 20ff.

6  SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of the Federal Republic of Germany, Report to State Party’ (2013) UN Doc CAT/OP/DEU/1, para 19; SPT ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of the Federal Republic of Germany, Report to the National Preventive Mechanism’ (2013) UN Doc CAT/OP/DEU/2, para 18; SPT, ‘Visit to Armenia Undertaken from 3 to 6 September 2013: Observations and Recommendations Addressed to the National Preventive Mechanism, Report to the National Preventive Mechanism’ (2017) UN Doc CAT/OP/ARM/2, para 22.

7  SPT ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of the Republic of Malta, Report to State Party’ (2016) UN Doc CAT/OP/MLT/1, para 18; in this sense, SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of the Netherlands, Report to State Party’ (2016) UN Doc CAT/OP/NLD/1, para 23; SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of the Republic of Armenia, Report to State Party’ (2015) UN Doc CAT/OP/ARM/1, para 26.

8  SPT, ‘Third Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2010) UN Doc CAT/C/44/2, para 49.

9  SPT, ‘Fourth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment' (2011) UN Doc CAT/C/46/2, para 62; Rachel Murray, ‘National Preventive Mechanisms Under the Optional Protocol to the Torture Convention: One Size Does Not Fit All’ (2008) 26 Netherlands Quarterly of Human Rights 485.

10  APT and IIDH, Optional Protocol to the UN Convention Against Torture: Implementation Manual (rev edn, 2010) 217–18.

11  APT, ‘OPCAT Briefings, Implementation of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Federal and Other Decentralised States’ (2011) <https://www.apt.ch/content/files_res/OPCAT%20and%20Federal%20States%20-%20Eng.pdf> accessed 12 December 2018.

12  SPT, ‘Report on the Visit to Brazil’ (2012) UN Doc CAT/OP/BRA/1, paras 92 and 94; see also Art 29 OP.

13  APT and IIDH (n 10) 86.

14  ibid.

15  Out of a total number of sixty-five designated NPMs, forty-seven involve NHRIs, either as the sole NPM institution or with other bodies.

16  UNGA, ‘Principles Relating to the Status of National Institutions’, Res 48/134 of 20 December 1993 (Paris Principles), Principle 1 (Competence and responsibilities).

17  eg Chile, Uruguay, Turkey, and Lebanon.

18  New specialized institutions have been created by: Paraguay, Bolivia, Honduras, Senegal, Liechtenstein, Guatemala, France, Germany, Kyrgyzstan, Nigeria, Switzerland, Burkina Faso, Tunisia, Mauritania, and Italy; APT List of Designated NPM by Type <https://www.apt.ch/en/by-type/> accessed 11 February 2018.

19  SPT, ‘Guidelines on National Preventive Mechanisms’ (2010) UN Doc CAT/OP/12/5, para 16.

21  Paris Principles (n 16) Principle 1 (Composition and guarantees of independence and pluralism).

22  In Peru, the NGOs have been leading the discussion on the appropriate NPM, suggesting that the Ombudsman’s office be designated as an NPM. The Ombudsman’s office has been taking active part in such discussions and draft legislation has been submitted: see APT, ‘National Preventive Mechanisms: Country-By-Country Status: under the Optional Protocol to th