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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.20 Obligations of States Parties to Facilitate Visits by the 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: 23 January 2022

Torture — Detention — Treaties, interpretation

(p. 921) Article 20  Obligations of States Parties to Facilitate Visits by the National Preventive Mechanisms

In order to enable the national preventive mechanisms to fulfil their mandate, the States parties to the present Protocol undertake to grant them:

  1. (a)  Access to all information concerning the number of persons deprived of their liberty in places of detention as defined in article 4, as well as the number of places and their location;

  2. (b)  Access to all information referring to the treatment of those persons as well as their conditions of detention;

  3. (c)  Access to all places of detention and their installations and facilities;

  4. (d)  The 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 national preventive mechanism believes may supply relevant information;

  5. (e)  The liberty to choose the places they want to visit and the persons they want to interview;

  6. (f)  The right to have contacts with the Subcommittee on Prevention, to send it information and to meet with it.

(p. 922) 1.  Introduction

Article 20 mirrors Article 14 OP, which foresees almost identical obligations for States parties regarding the Subcommittee.1 This reflects the desire of most States parties/delegations to grant the NPMs a mandate as broad as the Subcommittee’s as compromise.2 Indeed, it was the intention of the Mexican Draft of 2001 that the assessment of the situation of detainees on the basis of regular visits to all places of detention be the primary function of NPMs, whereas the Subcommittee was meant to advise, assist and supervise NPMs and only conduct country missions and visits to places of detention by itself when there was a particular need.3 However, the EU Draft, which was tabled in reaction to the Mexican Draft shortly thereafter, maintained the Subcommittee as the body primarily responsible for conducting regular missions and visits to places of detention, whereas NPMs were only foreseen if States parties wished to establish them.4

The final result is demonstrated by Article 20 OP: the OPCAT establishes similar duties for international and national OPCAT bodies, along with corresponding obligations for States parties and hence accords equal importance to international and national efforts to prevent torture and other ill-treatment.5

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Mexican Draft (13 February 2001)6

Article 6

  1. 1.  In order to assess the situation of persons deprived of their liberty and to make the relevant recommendations, national prevention mechanisms shall carry out visits to places where persons are deprived of their liberty; they shall have:

    1. (a)  Unrestricted access to all relevant information concerning the number of persons deprived of their liberty pursuant to an order of a public authority or at its instigation or with its consent or acquiescence, as well as the number of places and their location;

    2. (b)  Unrestricted access to all information relevant to treatment and conditions of detention;

    3. (c)  Unrestricted access to all places where persons are deprived of their liberty;

    4. (d)  Unrestricted access to all premises where persons are deprived of their liberty;

    5. (e)  Freedom to interview persons deprived of their liberty, without witnesses, personally or with the assistance of an interpreter, if required, as well as of any personnel deemed necessary;

    6. (p. 923) (f)  Freedom to select the places they wish to visit;

    7. (g)  Unrestricted freedom to contact, inform and meet with the Sub-Committee.

  2. 2.  Such visits may not be prohibited except in cases of absolute military necessity or serious disturbances in the place to be visited and then only as an exceptional and temporary measure. The organization, frequency and duration of such visits may not be restricted.

  3. 3.  No person or organization may be penalized or otherwise harmed for having provided relevant information to a national mechanism.

Article 7

  1. 1.  National mechanisms shall:

    1. (a)  Inform the competent authorities of their observations and make recommendations to them;

    2. (b)  Regularly inform the Subcommittee of their observations and recommendations.

  2. 2.  No personal data shall be made public without the prior consent of the person concerned, subject to liability.

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

During its ninth session from 12 to 23 February 2001, the Working Group discussed the alternative draft the delegation of Mexico had submitted with support of the 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 (p. 924) detainees. In order to be an effective method of preventing torture, such mechanisms should, according to most delegations, have full access to all persons deprived of liberty.8

At the tenth session of the Working Group from 14 to 25 January 2002, the concept of NPMs and questions related to their mandate were further elaborated.9 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. The delegation of the United States of America, however, strongly opposed the concept of establishing mandatory visiting mechanisms with unrestricted authority to visit places of detention. They suggested instead a system of limited authority that would provide checks and balances and ensure accountability. In contrast, many other delegations found that the national mechanisms should have unrestricted access to all places where persons were deprived of their liberty as well as full freedom to interview persons held in those places, without witnesses.

In the proposal presented by the Chairperson-Rapporteur, the concept of NPMs 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.10 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.11

3.  Issues of Interpretation

Article 20 is almost identical to Article 14 OP. The various issues of interpretation related to access to all information’ in Article 20(a) and (b) OP, ‘access to all places of detention and their installations and facilities’ in Article 20(c) OP, ‘the opportunity to have private interviews’ in Article 20(d) OP as well as ‘the liberty to choose the places’ to visit and ‘the persons’ to interview in Article 20(e) OP have been discussed above for the Subcommittee, and the relevant conclusions apply equally to the NPMs and the interpretation of Article 20 OP.12

10  Apart from this, there are a few important differences between the respective mandates that raise questions of interpretation. Furthermore, the SPT concretized certain issues for the NPMs and issued recommendations on the NPMs’ visiting methodology. The powers that the States parties grant their NPMs according to Article 20 OP shall enable them to ‘fulfil their mandate’. Hence, these powers are to be interpreted as guaranteeing the effective functioning of NPMs.13 All powers attributed to the NPM in Article 20 OP should be expressly provided by the implementing legislation.

(p. 925) 3.1  Access to Information

11  For the effective functioning of its monitoring mandate, an NPM must be in the position to make effective use of its liberty of choice among the places of detention according to Article 20(e) OP. Effective use necessitates having the relevant information for decision-making. Hence, information from the State party is of great importance, in addition to information from other sources such as civil society, professional bodies, and NHRIs.14

12  Access to all information concerning the number of places and their location is highly relevant as only complete information on all places of detention enables an NPM to fulfil the entire scope of its mandate according to Article 4 OP. Hence, the State party should inform its NPM thoroughly on all places of detention and changes in due course.15

13  The State party is also obliged to provide its NPM access to all information referring to the treatment of those persons as well as their conditions of detention. This requires that State authorities and authorities in charge of places of detention keep respective records to facilitate prompt access by the NPM to accurate and full information relating to detainees and records on detainees, such as incident registers and medical records, in addition to personal files.16 Other relevant information includes records of arrest, complaints, the use of disciplinary sanctions, the use of restraint, medical treatment requested and received, time spent in detention; statistical information on gender, age, ethnic background, etc; and information on staff and personnel;17 as well as schedules (including records of time spent in cells, time spent exercising, time spent indoors versus outdoors, and time spent working), and suicide watch arrangements.18 The NPM should actively seek all relevant information in the framework of its visiting activities.19 The NPM visiting team should examine information relating to detainees that the responsible authorities have to keep due to their obligation under Article 20(b), such as incident registers and medical records, in addition to personal files.20 According to the SPT’s Assessment Tool, ‘existing registries, examples of case records and activities and services for the detainees should be assessed, unless the visit is thematic only. If a visit is thematic, its coverage of the facilities can be only partial.’21 The SPT concretizes in its reports that NPM team members should (p. 926) ‘inspect all facilities in the places of deprivation of liberty it visits, systematically examining records and files and cross-checking them with information from other sources. If records are unavailable, the NPM should recommend changes in existing practices that will enable them to become available.’22

14  Regarding allegations and incidents of torture and ill-treatment, access of the NPM to a central confidential database could be useful to initiate urgent action where needed and set further necessary priorities in its visiting plan.23

15  If necessary, the States parties need to enact exemption to allow NPMs access to, and use of, relevant information in accordance with the OP.24

3.2  Access to All Places of Detention and Their Installations and Facilities

3.2.1  Unrestricted Access

16  Article 20(c) OP does not explicitly oblige the States parties to grant the NPM ‘unrestricted’ access, in contrast to Article 14(1)(c) OP for the SPT. However, a literal interpretation of Article 20(c) OP leads to the conclusion that, due to the absence of any limitation clause comparable to Article 14(2) OP to ‘temporarily prevent the carrying out’ of a visit, NPMs shall have access to all places of detention and their installations and facilities without restriction in space25 and time.26

(p. 927) 17  Unrestricted access in space means according to the SPT that the State party ensures ‘full and unlimited access to these places.27 The SPT recommended that a State party ‘ensure and facilitate effective and unrestricted access’ of independent monitoring bodies to certain facilities falling under the OP.28 In order to fulfil this obligation of access, the SPT recommends that it ‘be expressly included in the legislative basis for the NPM, and that the State maintain a dialogue with different stakeholders in the field to identify and clarify the exact meaning of the term “places of detention”, in full conformity with the OPCAT.’29

18  Access without temporary restriction means that no circumstances permit an objection by the Government or the authorities to a visit by the NPM due to the intended time; it is entitled to access ‘at any time of day or night.’30

3.2.2  Unannounced Visits

19  As Article 14(c) OP for the SPT, also Article 20(c) OP does not oblige the States parties to grant unannounced access. Although also no other provision of the OP explicitly speaks of ‘unannounced visits’ to be conducted by the NPM, the compromise on the two-pillar system must be understood in the sense that visits by both the national and international visiting body do not require any prior consent. The SPT has expressly confirmed that the right of NPMs to conduct unannounced visits is implied in its mandate.31 In this sense, the SPT recommended in numerous mission reports, emphasizing ‘the confidential nature of the NPM work as envisaged in the Optional Protocol’,32 that the NPM keep information about its visits confidential with a view to enabling unannounced visits to be undertaken.33 In this vein, the SRT has called the system established by the OP a ‘system of unannounced visits to all places of detention by independent experts’,34 confirmed the power of national or international experts ‘to inspect every place of detention at any time without prior announcement’,35 and strongly appealed to all States to ratify the OP and establish NPMs with, among others characteristics, ‘the right to carry out unannounced visits’.36

20  In fact, the essential preventive effect of the NPM can only be achieved if it can conduct unannounced visits. In this sense, the SPT stated in its Self-Assessment Tool that ‘[t]he major function of a national preventive mechanism in discharging its preventive role (p. 928) is to carry out visits, which may be unannounced, to places of detention.’37 Furthermore, it has noted in several reports the importance of unannounced visits by the NPM as such visits or short-notice visits, which ‘make it possible to obtain a clearer picture of the prevailing conditions in places of detention’,38 ‘give a much more realistic idea of conditions in a place of deprivation of liberty’,39 ‘assist [the NPM to] ascertain the real situation of persons deprived of their liberty’,40 ‘are necessary to ensure that the NPM can form an accurate understanding of the experience of those deprived of liberty’,41 and ‘allow for greater insights into the real conditions prevailing in a centre of deprivation of liberty’.42

21  It may be added that the NPM has the right to conduct all visits, including follow-up visits, unannounced.43

3.2.3  Private Interviews

22  Article 20(d) OP guarantees that NPMs have the same right to conduct private interviews as the SPT does under Article 14(d) OP.44 Private interviews of persons who have been deprived of their liberty are a central source of information on the treatment and conditions of detention. The SPT noted that ‘[w]ith due respect for the security regulations in force in any given institution … it is possible to conduct interviews with detainees inside cells and without surveillance.’45 However, all detainees ‘must be treated with humanity and their private space within the cells should be respected’.46

23  Also with other persons who the NPM believes may supply relevant information, Article 20(d) provides for private interviews. Such valuable sources might be alleged victims who are no longer detained, family members of detainees, witnesses, lawyers, doctors, prison staff, NGO, and media representatives.47

24  Unless there are substantive reasons for doing otherwise, the NPM should conduct individual and private interviews with persons deprived of their liberty and employees of the institution in question, including medical personnel.48 If the size of the visiting team is limited, the SPT recommended that the members of the team give such interviews with detainees at least an equal priority with speaking to those in authority.49 As to the aim of the interview, the SPT formulated clearly that interviews should be used ‘to take a closer look at structural aspects of the system of deprivation of liberty in order to collect (p. 929) information and thus be in a position to undertake a comprehensive, substantiated analysis of institutional, legal and public policy risk factors’.50 The NPM should establish a policy setting out which types of information can be collected during group interviews and which types of information should be collected in private interviews only.51 As group interviews pose certain risks as reprisals and have the potential to rapidly get out of hand,52 the specific circumstances in the respective institution, the usefulness and relevance of such an interview should be evaluated.53

25  Holding an interview in private means out of ear and sight of the authorities to ensure confidentiality, privacy, and to avoid reprisals. Moreover, to preserve the anonymity of the source of possibly sensitive or critical information obtained during a private interview, a number of private interviews should be conducted.54 When reporting on systematic issues or crimes, attention must be taken to assess whether the sharing of information might inevitably lead to the disclosure of personal data or to the identification of a person who has not given express consent for his/her personal data to be revealed. In such cases ‘the obligation of confidentiality prevails’.55

26  At the beginning of the interview, the members of the NPM should introduce themselves by telling them their name, profession, and position in the NPM.56 To facilitate communication and trust-building, the interviewer should explain the NPM’s mandate, especially its preventive nature, and objectives.57 The interviewer ‘should also obtain the consent of the interviewee and make it clear that the interview is confidential, voluntary and can be interrupted at any time at the interviewee’s request’.58

27  The distribution of a leaflet by the NPM members to the detained persons is a useful tool recommended by the to inform about the NPM’s mandate and working methods, the concept of informed consent, and contact information. It should also encourage persons to report any reprisal to the NPM.59

28  It is of course important that the members of the NPM hold the interview in a professional manner keeping objective distance to staff and focusing on establishing a trustful relationship to the detainees by listening actively and showing interest.60 Moreover, they (p. 930) need to be sensitive to the vulnerable situation of the person deprived of liberty, paying due regard to the central ‘do no harm’ principle. The Istanbul Protocol and monitoring guides of the OHCHR and civil society organizations such as APT provide detailed guidance on how to adequately conduct interviews.61

3.2.4  Liberty to Choose the Place  Prioritization

29  While Article 20(e) OP implies the NPMs’ liberty to choose the places they want to visit, it has been already elaborated on Article 19 OP that the principles of effectiveness and prevention demand that, besides a minimum of frequency of visits, the NPM will also need to prioritize certain types of or individual places of detention. Thus, places of detention are not to be visited with mathematical regularity,62 but following criteria that make the NPM’s work most effective. The criteria chosen should be transparent, clear, and published.63

30  Such criteria should include ‘the type and size of institutions, their security level and the nature of known human rights problems’.64 A valid addition to these criteria was made in one mission report, namely ‘the institutions’ accessibility to other oversight mechanisms’.65 Regarding the first criterion of type and size of institutions, risk is particularly high, for instance, in places used for the initial phase of detention where interrogations are carried out, in places with a fluctuation of persons deprived of liberty (eg police stations, detention centres for irregular migrants pending deportation, or pre-trial facilities),66 as well as in other places with high concentrations of particularly vulnerable categories of detainees (eg detention centres for irregular migrants pending deportation).67 Furthermore, next to the criterion of the security level of institutions, the SPT finds the nature of known human rights problems to be relevant for the choice of places of detention to visit.68 Places with a record of problems (eg recent complaints, reports from other organizations or the media) should be considered visiting priorities.69 Lack of information can also be of relevance via the criterion of accessibility to other oversight mechanisms: it seems sensible for NPMs to also concentrate on places of detention that would otherwise not be open to public scrutiny or external oversight (eg psychiatric institutions, social care homes, or centres for migrants).70

(p. 931) 31  While the NPM should prioritize the most problematic issues and institutions, it should fulfil its obligation to visit all places of detention in a minimum frequency.71 Further, additional flexibility and resources should be kept for follow-up and urgent visits.72  Information Gathering on the Places of Detention

32  The prioritization of places of detention must be based on all relevant information available on places of detention.73 For that purpose cooperation and exchange of information with civil society as well as other relevant actors is crucial. Particularly those who are in day-to-day contact with persons deprived of their liberty are a very valuable source of information who are in direct. This can be staff of NGOs supporting detained persons, organizations of relatives, social workers, or other monitoring mechanisms.74

33  The NPM should ‘keep an archive of all relevant information about places of detention and the treatment of persons held there’75 and put in place an ‘effective data management system’76 to be able to establish a long-term strategy of its activities as well as a subsequent annual plan of work.77

3.3  Cooperation between NPMs and the SPT

34  According to Article 20(f) OP, States parties endeavour to grant NPMs the ‘right to have contacts with the Subcommittee on Prevention, to send it information and to meet with it’. This provision expands the obligation of States parties according to Article 12(c) OP to ‘encourage and facilitate contacts between the Subcommittee on Prevention and the national preventive mechanisms’. This direct relationship between the OP bodies establishes the Protocol’s complementary system of prevention,78 the NPM complementing the work of the SPT at the national level to ensure the continuity of the dialogue with the national authorities.79

(p. 932) 35  This provision foresees the NPMs’ right to direct confidential contact with the SPT and not an obligation to send information or report to it. However, a refusal to cooperate with the SPT prevents the Subcommittee from exercising its duties in regard to NPMs under Article 11(b) OP and may inhibit its reception of valuable information on the situation in the country, especially the implementation of its recommendations.80 In fact, according to the SPT’s Guidelines, the NPM should ‘actively seek to follow up o