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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.21 Prohibition of Sanctions against any Source of Information of the NPM

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: 25 January 2022

Subject(s):
Torture — Treaties, interpretation

(p. 938) Article 21  Prohibition of Sanctions against any Source of Information of the NPM

  1. 1.  No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the national preventive mechanism any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

  2. 2.  Confidential information collected by the national preventive mechanism shall be privileged. No personal data shall be published without the express consent of the person concerned.

1.  Introduction

Article 21(1) mirrors Article 15 OP relating to the Subcommittee. It contains an important principle for the protection of detainees, family members, witnesses, lawyers, NGOs, and other relevant persons or organizations against any reprisals or victimization on the ground of having provided any information, true or false, to the NPM.1 Such sources of information shall be immune against any civil or criminal liability.2

Article 21(2) contains rudimentary provisions about the confidentiality of information provided to the NPM. In the absence of a general duty of confidentiality on the part of NPMs, these provisions raise several questions of interpretation.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Mexican Draft (13 February 2001)3

(p. 939)

Article 6

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

EU Draft (22 February 2001)4

Article 15 (new)

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

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

2.2  Analysis of Working Group Discussions

During the ninth and tenth session of the Working Group, the relevant provisions were not subject to any discussions.5

3.  Issues of Interpretation

3.1  Prohibition of Sanction

For the prohibition of sanctions against any source of information of the NPM in Article 21(1) OP, it may be referred to the questions of interpretation discussed in relation to the identical provision of Article 15 OP.6 Thus, only the SPT’s elaborations on the issue specifically regarding NPMs will be discussed here.

The SPT concretized in its Guidelines:

The State should not order, apply, permit or tolerate any sanction, reprisal or other disability [sic] to be suffered by any person or organisation for having communicated with the NPM or for having provided the NPM with any information, irrespective of its accuracy, and no such person or organisation should be prejudiced in any way.7

The  persons who fall under the protection of Article 21(1) are those who engage with the NPM or with whom the NPM engagesin the fulfilment of its functions’ under the OP.8

For the protection of Article 21(1) OP to be effective, the persons that could potentially benefit thereof must be informed of it. As a first step, the legal basis should include provisions on the issue of reprisals and other such actions against NPM members.9 Furthermore, the SPT recommended in its Assessment Tool that the NPMs develop a strategy for ‘preventing reprisals and threats by detention centre staff, as well as by fellow detainees’ against persons interviewed during a visit, and other persons who provide sensitive or critical information before or after a visit as well as NPM members and staff.10 (p. 940) The SPT has suggested elements for this strategy to the NPM,11 seeking to ensure that in cases of alleged reprisal ‘a disciplinary or criminal investigation is initiated and that victims are protected and, when relevant, compensated’.12

3.2  Principle of Confidentiality

3.2.1  Protection of Confidential Information

Article 21(2) OP outlines the principle of confidentiality in relation to the work of NPMs. In its Compilation of Advice, the SPT voiced its belief that the obligation of confidentiality under the Protocol should be given the widest possible interpretation in order to reflect the spirit of the Convention.13 It is the preventive nature of the NPM’s work that demands for confidentiality not to be breached.14

10  Confidential information collected by the NPM shall be ‘privileged’. This means that, first, no authority of the State shall force the NPM to disclose the source of information provided to the NPM on the basis of confidentiality, and that, second, the State party shall protect the NPM and the source against pressure from third parties. In other words, this provision protects the NPM from undue pressure on its sources of information. This intention explains why confidentiality is regulated in the context of a provision aimed at prohibiting sanctions against any person for having communicated any information to the NPM.

11  The SPT has provided guidance on the sensitive situation that an NPM becomes aware of allegedly criminal activity, whether of torture, related crimes, or other categories of crime. The SPT stated that

such activity may be reported, but unless there is express consent, personal data related to it shall be protected … Thus, for example, where information relating to systematic issues or crimes is gathered, its existence can be reported in general terms. However, particular care must be taken to assess whether the sharing of information relating to a particular situation or particular crime might inevitably lead to the disclosure of personal data or to the identification of a person who has not given their express consent for their personal data to be revealed. In such cases the obligation of confidentiality prevails.15

12  Pursuant to the first sentence of Article 21(2) OP and the respect for the right to privacy of the source of information, the NPM has the duty to respect information that it receives confidentially from detainees and other sources of information. In this sense, the SPT stated in its Guidelines that the NPM ‘should ensure that any confidential (p. 941) information acquired in the course of its work is fully protected’.16 Therefore, if a detainee explicitly requests that the interview given to a delegation of an NPM remain confidential, then the NPM is bound by this request and shall not publish the contents of the interview, even if it does not contain protected personal data. Accordingly, the French as well as the Norwegian NPM refused to give testimony in court.17

13  The obligation extends to the confidential information received by the SPT.

14  The second sentence of Article 21(2) OP repeats the general principle deriving from the right to privacy and data protection: ‘No personal data shall be published without the express consent of the person concerned.’ The SPT views the sharing of such information with a third party as equal to the publication of personal data .18

15  As possible source of information under personal data protection, the SPT listed exemplarily ‘persons deprived of their liberty, their families, lawyers, members of non-governmental organizations and State officials’.19

3.2.2  No Duty of Confidentiality: Publication of Reports

16  Apart from the prohibition from publishing personal data without the express consent of the person concerned, the Protocol does not contain any explicit duty of confidentiality on the part of the NPM. This is different for the Subcommittee on Prevention that is not only prohibited to publish personal data,20 but shall be guided by the principle of confidentiality,21 meet in camera,22 maintain direct, and if necessary confidential, contact with the NPM,23 communicate its recommendations and observations after a country mission confidentially to the State party, and, if relevant, to the NPM,24 and is only authorized in exceptional cases to publish its mission reports, partly only on the basis of a decision by the Committee against Torture.25

17  The question arises as to why the Protocol places such strict duties of confidentiality on the Subcommittee and no equivalent duty of confidentiality on the NPMs, as both bodies have the same mandate of carrying out preventive visits to places of detention with the aim to prevent torture and ill-treatment. How can the Subcommittee be required to communicate its confidential country mission report to the NPM if the latter is not bound by a duty of confidentiality?

18  The textual interpretation of Article 21(2) OP, in the context of other provisions of the Protocol and especially in comparison with the respective provisions relating to the Subcommittee, leads to the conclusion that the strict duty of confidentiality on the part of the Subcommittee is primarily based on the fact that the Subcommittee is an (p. 942) international body whose monitoring functions are perceived as constituting an undue interference with State sovereignty.

19  The fact that this difference of treatment of the SPT and the NPMs is not the result of blunder during the drafting of the OP can be seen from the travaux préparatoires. The EU Draft of 2001, for example, contained far-reaching duties of confidentiality for the Subcommittee relating to its mission reports and at the same time provided explicitly that the NPM ‘reports on its visits shall be public’.26 Even the Mexican Draft did not contain any explicit duties of confidentiality on the part of the NPMs.27

20  For the SPT, the provision on protection of personal data was introduced for the case that the State party requests the publication of its mission report. For the NPM, the inclusion of the same provision and in addition of the provision on confidentiality only makes sense if the NPM reports can, in principle, be made public. Hence, NPMs are not only allowed to publish their annual reports in accordance with Article 23 OP, but also, with respect to confidentiality and protection of personal data,28 to publish and disseminate reports on their visits to places of detention, including their recommendations to the relevant authorities in accordance with Article 19(b) OP.

21  Accordingly, the SPT recommended in its Assessment Tool that ‘[v]isit reports, including recommendations, should, in principle, be published. Exceptions may exist where the national preventive mechanism considers it inappropriate to do so or where there is a legal impediment … The mechanism may also publish thematic reports.’29

22  As to the State party’s obligations, the SPT also recommended that, depending on the country situation, the State party ‘facilitate the publication of all reports produced by the NPMs’30 or ‘should take steps to ensure that, as a rule, the reports of the national preventive mechanism are published, with recourse to confidentiality being the exception’.31

23  In general, publicity of the NPM’s reports is important, as it informs civil society about its work, the situation in places of detention, and hence enables cooperation and follow-up to the NPM’s findings and recommendations. Only in exceptional circumstances, not publishing a report and recommendations may be better, eg if a private dialogue with the relevant authorities make implementation probable.32 The SPT noted in its Assessment Tool that the NPM should, ‘based on its experience, develop a strategy for the use of its report, which should include the submission of the report to relevant official bodies and the Government as a basis for and dialogue, and possibly its publication and dissemination, for the purpose of alerting the wider society’.33 The SPT concretized in a report that the strategy for making use of its visit reports should be ‘based on a serious consideration of the value of publishing all or part of such reports, as appropriate’.34 (p. 943) To achieve this purpose, the SPT found in the situation that ‘the relevant authorities and institutions do not respond to the reports within a reasonable time frame and the reports are not published’35 that the NPM’s preventive function ‘cannot be fulfilled and its visibility suffers’36 and hence recommended that the publication of the NPM’s visit reports ‘should be a matter of course, and that reports should be deemed to be confidential in exceptional cases only’.37 The SPT added the recommendation for ‘timely’ publication in the case of Germany, where ‘recommendations to the responsible authorities following the visit currently remain confidential until their publication in the Annual Report’.38

3.2.3  Data Protection Legislation

24  It is important to have data protection and confidentiality legislation in place. Implementing legislation should permit an NPM to disclose or publish data about individuals when they give their express consent and does not put them at risk. Disclosure ‘must also be possible when the interviewee explicitly requests that the NPM refer his/her complaint to another institution, such as a prosecutor, ombudsman, professional association, or human rights tribunal’. An NPM should also have the unrestricted right to publish statistical or other information collated from personal data if this is truly rendered anonymous.39 Wherever, however, legislation requires the NPM or its officials to report crimes and/or share information, the SPT highlighted that ‘the principle of confidentiality as provided for in [the] Optional Protocol, and as explained above, shall prevail’.40

Stephanie Krisper

Footnotes:

1  cf above Art 15 OP, § 3.

2  cf above Art 15 OP, § 14.

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  But see above Art 15 OP, 2.2; Art 20 OP, 2.2; and below Art 23 OP, 2.2.

6  See above Art 15 OP, 3.

7  SPT, ‘Guidelines on National Preventive Mechanisms’ (2010) UN Doc CAT/OP/12/5, para 27.

8  ibid, para 14.

9  In this sense, see SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of Ecuador, Report to the National Preventive Mechanism’ (2014) UN Doc CAT/OP/ECU/2, para 16 (long); SPT, ‘Report on the Visit to Italy’ (2016) UN Doc CAT/OP/ITA/1, para 14.

10  SPT, ‘Analytical Assessment Tool for National Preventive Mechanisms’ (2016) UN Doc CAT/OP/1/Rev.1, para 37; see also 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 68; 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 53; 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 55.

11  CAT/OP/1/Rev.1 (n 10) para 37(a)–(h); see also 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 68.

12  CAT/OP/1/Rev.1 (n 10) para 37(h); see also APT, ‘Detention Monitoring Briefings, Briefing No. 4: Mitigating the Risks of Sanctions Related to Detention Monitoring’ (2012) <https://www.apt.ch/content/files_res/Briefing4_en.pdf> accessed 12 December 2018.

13  SPT, ‘Ninth Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2016) UN Doc CAT/C/57/4, Annex on ‘Compilation of advice provided by the Subcommittee in response to requests from national preventive mechanisms’ para 5.

14  See CAT/C/57/4 (n 13) Annex, para 6.

15  ibid, para 8.

16  CAT/OP/12/5 (n 7) para 37.

17  Anders Brekke and others, ‘Sivilombudsmannen stiller ikke i Breivik-rettssaken’ (2016) NRK <https://www.nrk.no/norge/sivilombudsmannen-stiller-ikke-i-breivik-rettssaken-1.12858404> accessed 12 December 2018.

18  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 99; CAT/C/57/4 (n 13) Annex, para 21: hence, an NPM that is part of an NHRI has to take into account the principle of confidentiality by carefully considering the need for the information to be shared with the NHRI staff on a case-by-case basis.

19  CAT/C/57/4 (n 13) Annex, para 7.

20  See above Art 16 OP, § 29.

21  See above Art 2 OP, § 27; in this sense, the SPT recalled in CAT/OP/ECU/2 (n 9) para 36 that the principle of confidentiality set forth in the OP ‘applies only to the activities of the Subcommittee, not to the activities of NPMs’.

22  See above Art 10 OP, § 12.

23  See above Art 11 OP, § 33.

24  See above Art 16 OP, § 24.

25  See above Art 16 OP, 3.2.

26  cf E/CN.4/2001/67 (n 3), Annex II, Arts 14 and 15(g); see also above, para 4.

27  See above E/CN.4/2001/67 (n 3), Annex I (the Mexican Draft) para 3.

28  The SPT clarified in its reports that the publication of reports is possible without violating the right of persons to their personal data. For example, in CAT/OP/DEU/2 (n 10) para 69, it stated that the NPM ‘should prepare and make public reports on the visits it conducts, without disclosing confidential information such as personal information concerning individuals deprived of their liberty’.

29  CAT/OP/1/Rev.1 (n 10) para 35.

30  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 36.

31  CAT/OP/ECU/2 (n 9) para 35.

32  E Steinerte, ‘The Jewel in the Crown and Its Three Guardians: Independence of National Preventive Mechanisms Under the Optional Protocol to the UN Torture Convention’ (2014) 14 Human Rights Law Review 1, 22.

33  CAT/OP/1/Rev.1 (n 10) para 32.

34  CAT/OP/ECU/2 (n 9) para 36.

35  CAT/OP/ECU/2 (n 9) para 35.

36  ibid.

37  ibid, para 36.

38  CAT/OP/DEU/2 (n 10) para 71.

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

40  CAT/C/57/4 (n 13) Annex, para 10.