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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.18 Independence, Pluralism, and Efficiency 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

Torture — Treaties, interpretation — Jurisdiction of states, universality principle

(p. 890) Article 18  Independence, Pluralism, and Efficiency of National Preventive Mechanisms

  1. 1.  The States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel.

  2. 2.  The States Parties shall take the necessary measures to ensure that the experts of the national preventive mechanisms have the required capabilities and professional knowledge. They shall strive for a gender balance and the adequate representation of ethnic and minority groups in the country.

  3. 3.  The States Parties undertake to make available the necessary resources for the functioning of the national preventive mechanisms.

  4. 4.  When establishing national preventive mechanisms, States Parties shall give due consideration to the Principles relating to the status of national institutions for the promotion and protection of human rights.

1.  Introduction

The role of NPMs within the universal system of torture prevention is of special significance, especially as the novelty of the whole system ‘lies in requiring states to utilize such mechanisms in combating torture as a matter of international legal obligation’.1 (p. 891) In 2009, the General Assembly called on States parties to the OP to fulfil their obligation to designate or establish ‘truly independent and effective national preventive mechanisms for the prevention of torture’.2 Indeed, the provision of independence ‘lies at the heart of the OPCAT and is the most important characteristic that an NPM must possess’.3 The need for ensuring its independence was identified as one of the key issues during the OPCAT’s drafting process and also one of the key reasons why the original Mexican proposal was not acceptable to many states who feared ‘puppet’ NPMs and why a counter-proposal to strong SPT emerged.4

Article 18(4) OP explicitly refers to the Principles relating to the status of national institutions for the promotion and protection of human rights (‘Paris Principles’) that States shall only give ‘due consideration’ to when establishing NPMs.5 Hence, the provisions of Article 18 OP shall be interpreted in light of the travaux préparatoires and the Paris Principles.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Mexican Draft (13 February 2001)6

Article 4

  1. 1.  When setting up a national mechanism, each State Party shall guarantee its functional independence and the independence of its staff.

  2. (p. 892) 2.  Each State Party shall take the necessary measures to ensure that the members of the national mechanism have the professional knowledge and skills required. It shall also take account of the gender balance and the need to ensure that ethnic groups and minorities are adequately represented.

  3. 3.  The members shall be chosen from among persons of high moral character having proven professional experience in the field of the practice of law and the administration of justice, in particular in criminal law, prison or police administration or in the various medical fields relevant to the treatment of persons deprived of their liberty or in the field of human rights.

EU Draft (22 February 2001)7

Article 15 (new)

For the purpose of this Protocol, a State Party wishing to establish a national mechanism undertakes to ensure that:

  1. (a)  The national mechanism will be composed of independent experts fulfilling the requirements set out in Articles 4 paragraph 3 and 5 paragraph 2;

  2. (b)  It has full powers to issue recommendations to the concerned authorities;

  3. (c)  It has unrestricted access to all places where persons are deprived of their liberty under all situations, including in peacetime, times of public disorder or states of emergency and during war in accordance with international humanitarian law;

  4. (d)  Unrestricted access to persons deprived of their liberty;

  5. (e)  Full freedom to interview the persons deprived of their liberty without witnesses, with the assistance of interpreters, if required, as well as all relevant personnel or persons;

  6. (f)  Unrestricted liberty to contact, inform and meet with the Sub-Committee with a view to implementing Article 9 paragraph 1 (d);

  7. (g)  The reports on its visits shall be public.

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 2001,8 the delegation of Mexico introduced its alternative draft (prepared with the support of GRULAC) proposing the obligation for the States parties to the Protocol to establish national mechanisms for the prevention of torture.9

During the discussion, it was recalled that in order to ensure, as much as possible, the effectiveness of national mechanisms, it was important that the Protocol identified the principles on which they should be based. Thus, the Working Group considered related issues, such as the NPMs’ mandate, independence, degree of effectiveness, links with other national institutions, governmental and non-governmental status, the importance of flexibility, and the impact of their recommendations.10

(p. 893) Some delegations stated that, in some countries, national institutions for the protection of human rights clearly lacked independence and effectiveness, and expressed concern about the ability of such institutions to reach the goals set forth in the Protocol.

During the tenth session of the Working Group from 14 to 25 January 2002, the concept of NPMs was further elaborated.11 Many delegations, including those of Spain (on behalf of the European Union), Argentina, Egypt, Georgia, El Salvador, the Republic of Korea, Poland, and South Africa, made statements regarding the ways and means of ensuring the independence of the national mechanisms. It was emphasized that these mechanisms should be established on the basis of the Paris Principles, that they should be independent from any other national authority, able to issue recommendations to the concerned authorities, and be adequately funded.

In the compromise proposal presented by the Chairperson-Rapporteur, the concept of national preventive mechanisms was described in Part IV, where it was stated that States would be required to maintain, designate or establish national mechanisms, based on the Paris Principles, to work in close cooperation with the Subcommittee.12

3.  Issues of Interpretation

10  While States parties enjoy a certain flexibility on the structure of their single or several NPMs according to Article 17 OP, they are obliged by Article 18 OP to guarantee the existence of an NPM with minimum guarantees, the most important of which is independence. In this sense, the SPT stated that ‘it is not for the Subcommittee to say in the abstract what may or may not be appropriate. All NPMs must of course be independent.’13 This em phasis that the SPT places on the characteristic of independence is also reflected in the fact that nearly every SPT’s mission report reiterates that ‘one of the crucial factors inhibiting ill-treatment is the existence of a fully functioning system of independent visits to monitor all places where persons may be deprived of their liberty’.14 Indeed, ‘[t]he linchpin for assessing the appropriateness of the choice of a particular institution as an NPM as well as what is seen as a factor in their effectiveness is independence’.15

11  Surprisingly, although it is the central requirement for NPMs and is, thus, mentioned often in the OPCAT (Articles 1, 17, 18, and 35), independence is not precisely defined, but is in fact formulated quite broadly, leaving terms open for interpretation. The provisions of Article 18 OP must be read together in order to ensure the full independence of NPMs in their different aspects.16 On the issue of establishment of the (p. 894) NPM, Article 18 (4) OP contains a specific reference to the ‘Principles relating to the status of national institutions for the promotion and protection of human rights’ (the ‘Paris Principles’).17

3.1  Functional Independence of NPMs

12  Article 18(1) OP requires States parties to guarantee the independence of NPMs. Independence is defined as ‘functional independence’, meaning that NPMs must enjoy independence from all State authorities (the legislative, executive, and judicial branches of Government),18 as well as from the authorities responsible for places of detention, civil administration, and party politics.

13  Functional independence is highly important for the effectiveness of NPMs,19 including several aspects. The first way to ensure functional independence is that the NPMs are based in a clear constitutional or at least legislative framework. Secondly, NPMs shall enjoy financial independence from the executive branch and dispose of a sufficient budget allocated by parliament that they are able to utilize as they wish. Furthermore, the members and staff of NPMs shall be appointed for a minimum period of office and be protected against any arbitrary removal during their term of office.

3.1.1  Establishment by Law

14  While the OP is silent on this issue, the Subcommittee elaborated also in its Analytical Assessment Tool for NPMs that it should be clearly set forth in a new or existing constitutional or legislative text ‘that the national preventive mechanism is to be given a preventive mandate and powers in accordance with the Optional Protocol’.20 The SPT has further reiterated that having a legal basis for an NPM is ‘a prerequisite for its institutional stability and functional independence’.21 Also the SRT demands for a clear legal basis.22

(p. 895) 15  A clear constitutional or legislative basis specifying the NPM’s mandate and powers guarantees that an NPM has structural independence from all branches of state,23 above all from the executive branch,24 including the police, military, and other security forces. Hence, an NPM placed under the authority of a Ministry or administratively attached to a Ministry raises questions about its functional independence. While, in practice, this link can be purely formal and the NPM can act truly independently in reality, it puts the NPM in a situation of vulnerability. The SPT for example expressed concern about the office of one NPM being within the Ministry of Justice, from which it derives the human resources for its operation.25

16  The SPT envisages the provisions on the NPM to be found in a clear legal basis, may it be a separate law26 or clear provisions in existing legislation. A separate law is especially important for the perceived independence of an NPM that is part of an institution with an additional mandate, as appearance of partiality can be exacerbated by the lack of a separate legal basis.27 The Paris Principles28 have been interpreted by the OHCHR and ICHR to require a separate law,29and the SRT supported this solution.30

17  As to the content of legislation establishing the NPM, it is of fundamental importance that the requirement for an NPM’s legal basis includes ‘the fact of designating an existing institution to carry out the NPM mandate’.31 Such ‘anchoring’ of the NPM in legislation guarantees that the only authority with the ability to alter the existence of the (p. 896) NPM is the legislature itself32 while it cannot guarantee freedom from abuse, namely by the legislature.33 When the body designated as the NPM performs other functions in addition to those under the OP, an explicit designation of the body carrying out the NPM, eg the entire NHRI or the ombudsperson, prevents uncertainty regarding which institution fulfils the mandate of the NPM and hence inhibits weakening the efficiency and the institutional credibility of the NPM.34 Further, the relationship between the NPM 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 internal regulations.35

18  What clearly has to be set out in a constitutional or legislative text is the mandate and powers of the NPM.36 According to the SPT, this is to be done by ‘specifying the composition of the mechanism and its sphere of competence’.37 The SPT further elaborated in its Assessment Tool that, first, ‘[s]uch legislation should extend the visiting mandate to all places where people are or may be deprived of their liberty, as set out in article 4 of the Optional Protocol’.38 This wording should be taken over and an exhaustive list avoided as it could exclude certain new types of places of detention.

19  Second, with reference to Articles 19 and 20 OP, the SPT states that the legislative text should grant the NPM at minimum:39

  1. (a)  The power to freely select the places of deprivation of liberty in which visits are to be carried out; to regularly examine the treatment of persons deprived of their liberty in those places; to select the timing of such visits and determine whether they are to be announced or unannounced; and to choose the persons to be interviewed;

  2. (b)  Access to all information, including personal and sensitive information, premises and persons necessary for pursuing its mandate;

  3. (c)  The power to make recommendations to the relevant authorities;40

  4. (d)  The power to submit proposals and observations concerning existing or draft legislation;41

  5. (e)  The right to have contact with the Subcommittee.42

(p. 897) 20  Third, as to the NPM’s mandate under Article 22 OP, the SPT notes that ‘[l]egislation should clearly state the obligation of competent authorities to examine the recommendations of the national preventive mechanism and to enter into a dialogue with it regarding the implementation of its recommendations’.43

21  Fourth, as to the obligation of the States parties to guarantee the functional independence of the NPMs according to Article 18(1) OP, the SPT notes that ‘[t]he relevant legislation should specify the period of office, whether determined or open-ended, of the members of the national preventive mechanism and any grounds for their dismissal’.44

22  Fifth, regarding the obligation of the States parties to guarantee the independence of the NPMs’ personnel according to Article 18(1) OP, the SPT states that

the legal basis should guarantee that the members of the national preventive mechanism and its staff enjoy such privileges and immunities as are necessary for the independent exercise of their functions,45 and should address the issue of reprisals and other such actions against members of the mechanism,46 their partners and any person who has communicated with the mechanism.47

The selection process for the members of the NPM should, according to the SPT, ‘preferably be prescribed in the governing NPM legislation’.48

23  When criticizing States parties for the lack or weak legal basis, the SPT has stipulated further recommendations on the content of NPM law. Regarding NPM membership, the SPT specifically recommended that the State party should enact specific legislative provisions setting out ‘appointment criteria and membership processes’.49 In another case, the SPT recommended that the law on the NPM ‘provide that membership of the NPM is incompatible with any other function which could affect its independence and impartiality’.50

24  Regarding the visits of NPMs, the SPT urged the State Party to ensure that the legal framework provides for ‘unrestricted access to all places of detention’.51 Moreover, ‘the State party should guarantee in law and in practice the full mandate of the NPM, in particular its right to conduct private interviews with persons deprived of liberty’.52 The NPM’s legal framework should also outline privileges and immunities of ‘those who contribute to the NPM, including experts and civil society’.53 The legal framework should furthermore guarantee ‘protection for persons who provide information to the NPM’.54

(p. 898) 25  Budgetary issues should also be regulated directly in the NPM law. As to Article 18 OP, the NPM’s legal framework should, in order to ensure its continuous financial and operational autonomy, ‘require a separate budget line in the State budget for the funding of the NPM’.55 On budgetary issues, the SPT deems it important to specify in the legislative provisions that the NPM will be allocated sufficient additional resources to enable it to fulfil its functions.56 It is also suggested that the source and nature of the NPMs’ funding be specified in their founding instruments.57

26  Similarly, the SPT suggested that the NPM law should mention the obligations of the State party to present and discuss the annual reports in the national legislative assembly.58

27  Finally, the SPT noted that the State party should ‘guarantee in law and in practice the full mandate of the NPM, in particular … to maintain direct contact with the SPT, in order, inter alia, to follow up on compliance with the present recommendations’.59

28  The NPM legislation has to be adapted to the national circumstances with the aim of an effectively functioning NPM.60 The SPT’s satisfaction with the NPM law in Paraguay61 and Honduras62 may be referred to here. Also some other NPM laws provide models on certain provisions, eg giving broader powers than required by the OPCAT63 or containing a provision that resemble the provisions of the OPCAT.64

(p. 899) 3.1.2  Financial Independence: ‘necessary resources for the functioning’

29  Financial independence is not expressly mentioned in the text of the OP. However, it is a very important aspect of functional independence and implied by the obligation of States parties under Article 18(3) ‘to make available the necessary resources for the functioning of the national preventive mechanisms’. In this sense, the SPT has stressed that ‘only financial autonomy of the NPM can guarantee its functional independence’.65 The SPT stated clearly in its Guidelines that ‘[t]he NPM should enjoy complete financial and operational autonomy when carrying out its functions under the Optional Protocol.’66 The Paris Principles state that ‘[t]he national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding.’67 Financial independence thus has two aspects: autonomy on budgetary issues and disposal of an adequate budget.  Financial Autonomy

30  For the SPT, the NPM should enjoy complete financial autonomy when ‘carrying out its functions’ under the OP.68 Also the Paris Principles make clear that financial autonomy is a fundamental requirement of independence: without it NPMs ‘cannot exercise operational autonomy or independence in decision-making’.69 Hence, the NPM should be able to make decisions on how best to allocate funding for specific aspects of its work free from both governmental control and the need for governmental authorization or approval.70

31  As to the source of funding, ie the body determining the funding, the Paris Principles formulate an aim of funding ‘to be independent of the Government and not be subject to financial control’.71 The implicitly suggested solution that funding be provided by the legislature has also been foreseen for NHRIs to assure their overall (p. 900) greater independence from the executive,72 an issue that is even more crucial for NPMs.73 However, even funding by the legislative may not be without problems.74 The NPM’s founding law should specify the source and nature of funding.75 Financial autonomy implies also that the NPM is funded through a separate budget line.76

32  In practice, most NPMs receive their funding from the State budget77 or from the same source as the institution the NPM has been established from or has become (p. 901) part of.78 In fact, the source of funding has not so often been an issue of concern as the level of funding.79  Adequate Budget

33  While Article 18(3) OP requires States parties only to make the resources necessary for ‘the functioning’ of an NPM available, the SPT Guidelines state that ‘[t]he necessary resources should be provided to permit the effective operation of the NPM in accordance with the requirements of the Optional Protocol’.80

34  Resources for an effective functioning include human, material and financial resources.81 Material resources include, inter alia, vehicles, interpretation, and working spaces.82 As to human resources, the NPM must have sufficient personnel and financial means to remunerate experts to visit the number of places of detention covered by the NPM’s mandate effectively.83 The budget should be sufficient to leave the NPM the decision on frequency and manner of the visits and follow-up visits84 as well as enable the NPM to fulfil its other functions, ie write visit reports and annual reports including recommendations, and submit proposals on legislation.85

(p. 902) 35  Clearly, the mandate of NPMs is very cost-intensive. After all, to conduct regular visits to all places of detention by a sufficient number of qualified staff, to examine regula