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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.19 Mandate and Power 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, 2021. All Rights Reserved.date: 06 December 2021

Subject(s):
Torture — Detention — Treaties, interpretation — Fact-finding and inquiry

(p. 911) Article 19  Mandate and Power of National Preventive Mechanisms

The national preventive mechanisms shall be granted at a minimum the power:

  1. (a)  To regularly examine the treatment of the persons deprived of their liberty in places of detention as defined in article 4, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment;

  2. (b)  To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;

  3. (c)  To submit proposals and observations concerning existing or draft legislation.

1.  Introduction

The mandate and power of NPMs, as defined in Article 19 OP, must be read together with the corresponding obligations of States parties under Articles 17, 18, and 20 to 23 OP. The main function of NPMs is to conduct regular visits to all places of detention in their respective country, to examine the conditions of detention therein and the treatment of detainees with a view to strengthening their protection against torture and ill-treatment. On the basis of such visits, the NPM shall make recommendations to the relevant authorities with the aim of improving conditions of detention and preventing torture. In addition, the NPMs are granted the power to comment on existing or draft legislation, allowing them to become involved in preventive legislative efforts.

As was pointed out above, the purpose of visits to places of detention is threefold: preventive, fact-finding, and as a means of cooperating with the Government (p. 912) concerned.1 Whereas Art 1 OP stresses the preventive function of visits to places of detention as the overall objective of the Protocol,2 Art 19 OP concentrates more on the fact-finding task of NPMs.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Mexican Draft (13 February 2001)3

Article 5

National mechanisms shall have the following powers, as a minimum:

  1. (a)  To examine the situation of persons deprived of their liberty with a view to strengthening, if necessary, their protection from torture and other cruel, inhuman or degrading treatment or punishment;

  2. (b)  To make recommendations to the competent authorities with a view to improving the treatment and conditions of persons deprived of their liberty and preventing torture and other cruel, inhuman or degrading treatment or punishment;

  3. (c)  To propose or comment on draft or existing legislation on this question;

  4. (d)  To take any initiatives that would help States Parties fulfil their obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and other relevant international instruments.

EU Draft (22 February 2001)4

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.

(p. 913) US Draft (16 January 2002)5

Article 3

National mechanisms may, inter alia:

  1. (a)  Examine the situation of persons deprived of their liberty pursuant to an order of a public authority with a view to strengthening, if necessary, their protection from torture and other cruel, inhuman or degrading treatment or punishment;

  2. (b)  Make recommendations to the competent authorities with a view to improving the treatment and conditions of such persons and preventing torture and other cruel, inhuman or degrading treatment or punishment;

  3. (c)  Propose or comment on draft or existing legislation on matters relating to the treatment of such persons;

  4. (d)  Request, where necessary, technical advice from the Subcommittee on Prevention designed to assist States Parties with the effective implementation of their obligations under the Convention with a view to strengthening, if necessary, the protection of such persons from torture and other cruel, inhuman or degrading treatment or punishment.

2.2  Analysis of Working Group Discussions

During its ninth session from 12 to 23 February 2001, the Working Group discussed the alternative draft the delegation of Mexico had submitted with the support of GRULAC.

Most delegations considered that the mandate of national mechanisms should be as broad as possible and that they should apply universal standards for the protection of detainees.6

At the tenth session of the Working Group from 14 to 25 January 2002, the concept of national preventive mechanisms was further elaborated.7 With regard to the functions of these mechanisms, the delegations of China, the United States of America, and Egypt proposed that national and regional bodies should take the leading role in visiting places of detention. However, the delegation of the United States of America strongly opposed the concept of establishing mandatory visiting mechanisms for these bodies with unrestricted authority to visit places of detention and suggested instead a system of limited authority that would provide checks and balances and ensure accountability.8

In the 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.9 During the discussions on the proposal, the delegation of Japan stated that there were no reasonable grounds for the establishment of a mandatory national visiting mechanism that would have basically the same mandate as an international visiting mechanism.10

(p. 914) 3.  Issues of Interpretation

10  Article 19 OP precisely lists the operational powers of an NPM: to regularly examine the treatment of the persons deprived of their liberty, to make recommendations to the relevant authorities and to submit proposals and observations concerning existing or draft legislation. These are declared to be the minimum powers to be granted to an NPM (‘shall be granted at a minimum the power …’).

3.1  Regularly Examine Places of Detention

11  Whereas Article 11(1)(a) OP defines the mandate of the SPT to ‘visit the places referred to in article 4’, Article 19 OP formulates the power to ‘regularly examine the treatment of the persons deprived of their liberty’. However, it is evident that the latter provision attributes the conduct of visits as the core mandate of the NPM, which is also referred to in Article 3 OP as ‘visiting’ body and in the Preamble when noting the objective of the OP to be ‘to establish a system of regular visits undertaken by independent international and national bodies.’ In this sense, the SPT clarifies in its Self-Assessment Tool that ‘[t]he major function of a national preventive mechanism in discharging its preventive role is to carry out visits … to places of detention. The purpose of such visits is to regularly examine the treatment of persons deprived of their liberty’.11

12  The word ‘examine’ reflects the fact that a preventive function of visits also implies a fact-finding task.12 While this power is mainly realized by visiting places of detention, it also includes the analysis of information from other reliable sources.13 In fact, the SPT stated that the NPMs should ensure that information is collected ‘from all available sources, such as the administration and staff of the institution visited, detainees from all areas and units, other visitors, if appropriate, and outside actors, such as civil society and other monitoring mechanisms’.14 On this information, the NPM should keep record in an archive15 and put in place an ‘effective data management system’16 to build an institutional memory.17

13  The phrase ‘regularly examine’ in Article 19(a) OP mainly means examination by regular visits.18 While the OP leaves the decision on the frequency of the visits to places (p. 915) of deprivation of liberty with the NPM, it makes clear that the NPM should not ignore any institution or geographical area.19 For the monitoring system established by the OP to have a preventive character, it is crucial that visits are conducted in a regular manner. Regularity is highlighted as necessary element for inspections of places of detention to be the ‘most effective preventive measure’20 against torture and other ill-treatment.

14  The SPT stated that NPMs have to visit places of detention with appropriate frequency’21 or periodically.22 The aim of a ‘sufficient frequency’ is ‘to make an effective contribution to the prevention of torture and other cruel, inhuman or degrading treatment or punishment’.23 NPMs must conduct visits in such a frequency to achieve two of their central purposes: first, to have by repetition of appearance a preventive effect by deterrence (the mere fact of being able to enter places of detention unannounced24 reduces the risk of torture and other forms of ill-treatment); second, to have up-to-date information on the treatment of persons concerned.25 The latter enables the NPM to make a system-wide analysis that aims to identify risks of torture and other ill-treatment and, thus, allows root causes to be addressed.

15  However, this minimum of frequency, the NPM should not visit every place of detention with the same mathematical regularity, but rather prioritize certain types of or individual places of detention. In this sense, the SPT recommends that NPMs ‘collectively develop criteria for selecting the facilities to be visited that will ensure that they are all visited periodically’.26 Such criteria are, according to the SPT’s Self-Assessment Tool, ‘the type and size of institutions, their security level and the nature of known human rights problems, while leaving room for flexibility in the allocation of resources to ensure that follow-up and urgent visits can be undertaken’.27

16  The terms ‘persons deprived of their liberty’ and ‘places of detention’ shall be interpreted in line with the respective definitions in Article 4(1) and (2) OP.28

(p. 916) 3.2  Recommendations

17  Article 19(b) OP mandates NPMs to make recommendations to the authorities aimed at, first, ‘improving the treatment and the conditions of the persons deprived of their liberty’ and, second, ‘to prevent torture, cruel, inhuman or degrading treatment or punishment’. NPMs are, thus, empowered to make recommendations with the aim not only to contribute to immediately correcting problems affecting detainees, but, more importantly, to examine all aspects of detention and identify the factors and the situations that increase the risk for persons deprived of their liberty to be ill-treated or tortured.29 In this sense, the SPT notes in its Self-Assessment Tool that recommendations should, in general, ‘have a preventive focus, addressing systematic gaps and practices (root causes)’.30 It clarifies in its Approach to the Concept of Prevention that the purpose of recommendations

is not only to bring about compliance with international obligations and standards but to offer practical advice and suggestions as how to reduce the likelihood or risk of torture or ill-treatment occurring and will be firmly based on, and informed by, the facts found and circumstances encountered during the visits undertaken.31

Focus should be laid on the legal and administrative measures applied within the place; the material conditions; the regime of detention and the activities; the medical care; the organization and management of detainees and staff; and the relations between staff and detainees.32

18  The SPT noted that the NPM’s recommendations should be well founded and, in general, feasible in practice. They should be ‘relevantly focused, precise and non-complex, so as to avoid confusion in the dialogue about their implementation’.33 As practical guidance to make recommendations as effective and useful as possible, the APT proposes a ‘double-smart model’ which suggests the application of the following criteria: specific, measurable, achievable, results-oriented, time-bound as well as solution-suggestive, mindful of prioritization, sequencing and risks, argued, root-cause responsive, targeted.34

3.2.1  Reference to International Standards

19  According to Article 19(b) OP, NPMs shall, when making recommendations, take ‘into consideration the relevant norms of the United Nations’. Hence, while the OP was established to ensure compliance with the CAT’s provisions, the NPMs’ recommendations should ‘reflect, among other things, relevant international norms and practices’.35 (p. 917) The list of relevant binding and non-binding international human rights law in Article 2(2) OP can be referred to here,36 respective regional standards as developed by the CPT or the ECtHR being also seen as useful.

20  As the NPM is in continuous contact with the State party, it should also pay due attention to the recommendations made by the SPT, if they are made public or communicated to the NPM in accordance with Article 16 OP.37

3.2.2  Relevant Authorities

21  According to Article 19(a) OP, the recommendations shall be made ‘to the relevant authorities’. The OP leaves it open to the NPM to determine which authorities are ‘relevant’ to any particular recommendation. The NPM’s work will be more effective when recommendations are made both to the management of the place of detention such as the directors/managers of the places of detention concerned’ and as well as to the supervisory authority, ie ‘governmental authorities’.38 The director of the place visited can address practical solutions while system-wide issues require decisions ‘to be taken at the national level or amendments to legislation’.39 Thus, in line with Article 22 OP, every recommendation should also be submitted, as also foreseen by the SPT in addressing the recommendations to the ‘governmental authorities’,40 to the highest relevant respective authority (eg the Minister of Interior, Justice, Defence, or Health). The SPT noted that ‘[i]n particular cases it may be appropriate to recommend that authorities immediately put an end to certain practices and initiate a criminal investigation.’41

22  It is advisable that the legislative act establishing an NPM defines the process and the central authority. This discretion of the NPM should be provided for in the NPM’s implementing legislation.42

3.2.3  Communication of Recommendations

3.2.3.1  Preliminary Recommendations

23  In the course of an immediate debriefing with the representatives of the place of detention at the end of a visit, preliminary observations and possible recommendations should be presented—particularly those that can be implemented immediately.43 Such direct communication of recommendations in a debriefing with the representative of the (p. 918) place visited is even more important if the place is privately run where the link to the competent supervisory state authority is weak and the representative may otherwise be excluded from the knowledge on the problems.

24  A personal debriefing or formal written feedback in the form of a detailed letter or a preliminary report gives the director of the place of detention the opportunity to address any shortcomings before the state or supervisory authorities is/are informed.44 Furthermore, the transparent inclusion of the visited institutions in the dialogue inhibits ‘monitoring fatigue’, which could negatively influence the cooperation and willingness to implement recommendations.45

3.2.3.2  Visit Reports

25  While no provision in the OP commits the NPMs to issue visit reports,46 the SPT clarified in its Guidelines that ‘[t]he NPM[sic] should produce Reports [sic]following their visits … and any other forms of Report [sic]which it deems necessary. When appropriate, Reports[sic] should contain recommendations addressed to the relevant authorities.’47 In fact, for effectiveness of their visits, NPMs should issue a report on every visit and do so as promptly as possible.48

26  For the NPM to fulfil its mandate effectively, its visit reports need to be of a certain quality. The SPT sets the following standards for visit reports in its Self-Assessment Tool:

Visit reports should focus on the most important issues, that is, the reporting of ill-treatment, gaps in policies, regulations and practices, and the appropriateness of conditions under which detainees are living, and should reflect any systematic lack of protection of the rights of detainees. Good practices should be noted and filed for systematic analysis. Cases of deliberate ill-treatment should be examined to identify gaps in the protection of persons deprived of their liberty.49

As to the depth of information included in the report, the SPT noted that it should enable readers, including those who are not familiar with the institutions visited, to form a realistic picture of the situations. Thus reports should describe the places visited giving details of, for example, the dimensions of cells, the lighting, the toilet facilities, and the ventilation.50

3.3  Submitting Proposals and Observations

27  Article 19(c) OP empowers NPMs to assess existing and proposed legislation and submit observations and proposals, ie draft legislation.51 This power further strengthens the broad preventive approach and is only limited by the relevance of legislation for the NPM’s mandate,52 ie the State party’s international obligations and other international (p. 919) standards relevant to the prevention of torture and ill-treatment, including the CAT, OP, and the Paris Principles.53 This capacity of the NPM constitutes a key aspect of its mandate and represents an important function complementary to visits: problems identified during visits to places of detention may be the result of inadequate laws or regulations. The capacity to propose revisions to respond to gaps in legal protections and/or to propose legal safeguards constitutes an important tool for NPMs.54

28  To facilitate this aspect of the NPM’s mandate, the SPT sees an obligation on the side of the State party to inform the NPM of any draft legislation under consideration which is relevant to its mandate and give the NPM the possibility to make proposals or observations on existing or draft policy or legislation.55

29  The NPM on its side should, first, develop an alert system to ensure to be informed on relevant legislation and draft laws.56 Second, in order to fully discharge its mandate in accordance with Article 19(c) OP, the NPM should by its own initiative advocate for legislative changes and their implementation with parliamentarians and Government.57 To that end, the NPM should, based on a comprehensive analysis of the problem detected, have a proactive strategy for setting priorities and should follow up on its comments and recommendations.58

3.4  Further Activities

30  Article 19 OP provides for the power that shall be granted to the NPMs by the States parties ‘at a minimum’. In its Self-Assessment Tool, the SPT has listed the mandate of the NPM to include also the following activities:

  • •  Publicizing relevant information about its work, especially through education and by making use of a broad range of media59

  • •  Submitting proposals concerning relevant human rights action plans60

  • •  Performing systematic reviews of interrogation rules, instructions, methods, and practices and of arrangements for the detention and treatment of detained persons61

  • •  Examining rules or instructions issued in regard to the duties and functions of law enforcement personnel, civil or military, medical personnel, public officials, and other relevant persons62

  • (p. 920) •  Assisting in the formulation of programmes for the teaching of the prohibition and prevention of torture and other forms of ill-treatment, carrying out research into human rights, and, where appropriate, taking part in the execution of such programmes and research in schools, universities, and professional circles63

  • •  Examining the curricula of education institutions to ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials, and other relevant persons64

  • •  Contributing to the reports that States parties are required to submit to UN bodies or presenting its own reports and, where necessary, expressing an opinion on the subject, in accordance with its independent status65

  • •  Following up on the process of implementation of recommendations made by relevant UN and regional bodies to the States parties, providing advice at the national level and providing the recommending bodies with information66

  • •  Considering establishing and maintaining contacts with other NPMs with a view to sharing experiences and reinforcing effectiveness67

  • •  Establishing and maintaining contact with the SPT by regularly exchanging information and meeting with it.68

Stephanie Krisper

Footnotes:

1  See above Art 1 OP, §§ 44–46.

2  UNGA, Res 57/199 of 18 December 2002, Art 1.

3  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.

4  ibid, Annex II.

5  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 II E.

6  E/CN.4/2001/67 (n 3) para 29.

7  E/CN.4/2002/78 (n 5) paras 37ff.

8  ibid, para 40. See above § 5.

9  E/CN.4/2002/78 (n 5) para 50 and Annex I.

10  ibid, para 80.

12  See above Art 12 OP, § 3.

13  CAT/OP/1/Rev.1 (n 11) para 45: ‘The national preventive mechanism should ensure that important concrete and contextual observations arising from its visits to institutions and stemming from other reliable sources, its recommendations and the responses from the authorities are categorized, filed and systematically processed for use in dialogue with the authorities, in the ongoing planning of work and in the further development of its strategies.’