Footnotes:
1 cf in detail the various guarantees for the effective functioning of the Subcommittee’s visits to places of detention above Art 14 OP.
3 cf 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 (the Mexican Draft) arts 6, 15, and 16. See below para 3.
4 cf E/CN.4/2001/67 (n 3) Annex II (the EU Draft) arts 2, 3, 9, and 15. See below para 4.
5 APT and IIDH, Optional Protocol to the UN Convention Against Torture: Implementation Manual (rev edn, APT and IIDH 2010) 94.
6 E/CN.4/2001/67 (n 3) Annex I.
8 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, para 29.
9 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, paras 37ff.
10 ibid, para 50; see also 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.
11 E/CN.4/2002/78 (n 9) para 80.
13 APT and IIDH (n 5) 95.
15 In one mission report, the SPT recommends the State party to ‘develop a full list of the types of places where persons are deprived of their liberty’, and urges the State party to ‘ensure that the NPMs are given full and unlimited access to all relevant information … to enable them to properly fulfil their mandate’: 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, paras 23 and 34.
18 APT (ed), Guide: Establishment and Designation of National Preventive Mechanisms (APT 2006) 58.
20 CAT/OP/DEU/1 (n 16) para 46.
21 CAT/OP/1/Rev.1 (n 19) para 25.
22 CAT/OP/DEU/2 (n 19) para 64; see also SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of Honduras, Report for the National Preventive Mechanism’ (2013) UN Doc CAT/OP/HND/3, para 25.
23 In this sense, the SPT recommended a centralized national database, including anonymous, confidential information obtained under professional confidentiality. The SPT sees such a register as ‘a source of useful information that could point to situations where urgent action is required, and could also assist in the development and adoption of preventive measures. The NPM and other such bodies vested with authority to deal with prevention of and complaints concerning torture and ill-treatment should also have access to such a national register’: SPT, ‘Fifth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2012) UN Doc CAT/C/48/3, para 81, referring to UNGA, Res 66/150 (2012) para 8, which encourages States to consider records.
24 APT and IIDH (n 5) 95.
25 ‘Article 20(c) requires the State authorities to provide the national preventive mechanism access to all parts of any place of detention. This would include, for example, living quarters, isolation cells, courtyards, exercise areas, kitchens, workshops, educational facilities, medical facilities, sanitary installations, and staff quarters’: APT, Guide (n 18) 54.
26 Such unrestricted access would correspond to the explicit provisions and intentions of the EU Draft. On the one hand, it was precisely this word ‘unrestricted’ which the Chairperson deleted in her final draft and which distinguishes Article 20(c) from the comparable provision of Article 14(1)(c). A comparative analysis of Articles 14(2) and 20(c) could, therefore, be interpreted in the sense that certain restrictions might be permitted. But, contrary to Article 14(2), the reason and extent of such restrictions are not defined, and even the Mexican Draft had only envisaged ‘cases of absolute military necessity or serious disturbances in the place to be visited as an exceptional and temporary measure’. On the other hand, however, Article 32 VCLT permits the use of the travaux préparatoires only when the textual approach either leaves the meaning of a treaty provision ambiguous or obscure, or leads to a manifestly absurd or unreasonable result. Article 20(c) OP is not particularly ambiguous or obscure, and an unrestricted right of access of NPMs to all places of detention cannot be regarded as an absurd or unreasonable result of interpretation. On the other hand, it might not be unreasonable for a Government, in the exceptional case of serious prison riots, to prevent an NPM temporarily from entering such a prison. In any case, even the travaux préparatoires, if at all accepted as a supplementary method of interpretation, clearly suggest that such restrictions could only be justified as a truly exceptional and temporary measure, as envisaged in the Mexican Draft. The grounds of public safety or natural disaster, as foreseen in Art 14(2) in relation to a visit of the Subcommittee, could certainly not be invoked as a reason for denying a NPM access to a detention facility.
27 CAT/OP/MLT/1 (n 15) para 34.
28 SPT, ‘Report on the Visit to Italy’ (2016) UN Doc CAT/OP/ITA/1, para 51(b).
29 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 44.
31 ‘The State should ensure that the NPM is able to carry out visits in the manner and with the frequency that the NPM itself decides. This includes … the right to carry out unannounced visits at all times to all places of deprivation of liberty, in accordance with the provisions of the Optional Protocol’: in SPT, ‘Guidelines on National Preventive Mechanisms’ (2010) UN Doc CAT/OP/12/5, para 25, emphasis added.
32 CAT/OP/DEU/2 (n 19) para 53; SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of Moldova, Report for the National Preventive Mechanism’ (2013) UN Doc CAT/OP/MDA/2, para 25.
33 CAT/OP/HND/3 (n 22) para 21; SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of Senegal, Report for the National Preventive Mechanism’ (2013) UN Doc CAT/OP/SEN/2, para 39; CAT/OP/MDA/2 (n 32) para 25; CAT/OP/DEU/2 (n 19) paras 45 and 54.