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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.22 Obligation of States Parties to Examine the Recommendations 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: 21 May 2022

Subject(s):
Torture — International co-operation — Treaties, interpretation

(p. 944) Article 22  Obligation of States Parties to Examine the Recommendations of National Preventive Mechanisms

The competent authorities of the State party concerned shall examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures.

1.  Introduction

It derives from the principle of cooperation between the States parties, the Subcommittee, and NPMs that the recommendations by both visiting bodies have to be taken seriously by the authorities. This duty of States parties vis-à-vis the Subcommittee was laid down in Article 12(d) OP,1 which formed the model for an identical provision in relation to the NPMs in Article 22 OP.

This provision is very important for follow up and implementation—meaning the impact—of NPM work.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Mexican Draft (13 February 2001)2

Article 8

Each State Party to the present Protocol undertakes to implement the recommendations made by its national mechanism.

(p. 945) Proposal by the Chairperson-Rapporteur (17 January 2002)3

Article 22

The competent authorities of the State party concerned shall examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures.

2.2  Analysis of Working Group Discussions

No discussions are reported on this article in the reports of the ninth and tenth session of the Working Group.

3.  Issues of Interpretation

Article 22 OP mirrors Article 12(d) OP and obliges States parties to ‘examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures’. By stressing the principle of cooperation also for the NPMs, Article 22 OP ‘accords equal importance to international and national preventive efforts’.4

3.1  ‘Competent authorities’

The difference of Article 22 OP to Article 12(d) OP lies in the concretization of the persons under obligation: ‘the competent authorities of the state party concerned.’ These are the persons with the power to implement the respective recommendation. Hence, the authority that is ‘competent’ for a recommendation can be situated on different level in the hierarchy, ie from the administration of the visited institution up to the Ministers (of Interior, Justice, Defence, Health, etc) under whose authority the respective place of detention falls.5

The ‘competent’ authorities are identical to the ‘relevant’ authorities that the NPM addresses its recommendations to according to Article 19 OP, assuming that the NPM has correctly identified the respective authority. As already discussed,6 it also serves the effectiveness of the NPM’s work if the first authority that examines the recommendation and enters into dialogue with the NPM on its implementation is the hierarchically lowest one with the competence to correct the problems that the NPM identified. Additionally, a focal point in every relevant ministry can be useful to follow up on the implementation of the NPM’s recommendations and report to the mechanism in that regard.7 Many (p. 946) recommendations of the NPMs might need legislative measures for their full implementation, and thus the legislature may also be considered as competent authorities.

It may be suggested that implementing legislation gives the NPM the discretion to determine which authorities it deems appropriate to receive a certain recommendation. If the NPM makes a recommendation to an authority it erroneously finds to be ‘relevant’ according to Article 19 OP, this receiving authority should be obliged in good faith to refer the recommendation to the competent authority which would then have the duty to respond.8 The implementing law should also allow the NPM to ‘set a defined period within which it expects a response and dialogue with the competent officials’.9

3.2  Examination of Recommendations

10  Article 22 OP only stipulates a duty to ‘examine the recommendations’ and to enter into a dialogue with the NPM on ‘possible implementation measures’. This underlines that, like the recommendations of the Subcommittee, the recommendations of NPMs are non-binding under international law. Nevertheless, it follows from the objective and purpose of the OP, and the general principle of cooperation as well as from good faith engagement after ratification of the Protocol that States shall take the recommendations of both bodies seriously and are under a duty to implement them due to the obligation to take all possible and relevant measures to prevent torture and ill-treatment.10 According to the SPT the NPM legislation should also ‘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’.11

11  In one of its first visit reports, the SPT urged the respective federal Government and the various state governments to ‘comply with the recommendations issued to date by the national preventive mechanism and with its future recommendations’, adding that ‘[t]he State party has an international obligation to do so’, as stipulated in Articles 22 and 23 OP.12 The SPT noted in its Guidelines that the State should take proposals and observations received from the NPM ‘into consideration’ on legislation that is relevant to its mandate.13

12  The SPT noted early that it is one of the main objectives of the NPMs ‘to enter into a dialogue with the competent authorities with a view to improving the situation of persons deprived of their liberty and proposing ways of implementing the recommendations’,14 (p. 947) especially by means of its visit reports.15 In fact, the SPT envisages that the official in charge of the institutions will receive, as competent authority, the recommendations as an integral part of the visit report—this after possible preliminary recommendations in the course of an immediate debriefing at the end of a visit with the representative of the place of detention, or via formal written feedback in the form of a detailed letter or a preliminary report to the places of detention.16 Visit reports are to be used ‘as a platform for dialogue’17 and are also a key tool for any follow-up processes. As the competent authority considers the whole report when ‘examining’ the recommendations, its quality is highly relevant18 to increase the likelihood that the recommendations are considered and implemented.

3.3  Dialogue on Possible Implementation Measures

13  As with the recommendations of the Subcommittee, it follows from the objective and purpose of the OP and the general principle of cooperation that States shall make bona fide attempts to implement the NPM recommendations.19 Further, while Article 22 OP only refers to the recommendations of the NPM, the principle of complementarity implies that, as a body complementing the work of the SPT at the national level, the NPM ‘is in a frontline position to ensure the continuity of the dialogue with the national authorities on issues relating to prevention of ill-treatment’.20

14  NPMs should not only consider but also follow-up the SPT recommendations and liaise with the SPT in the process.21 The mandate of an NPM includes ‘[f]ollowing up on the process of implementation of recommendations made by United Nations and regional bodies to the States parties with regard to torture and related issues, providing advice at the national level and providing the recommending bodies with information, as appropriate’.22 In that regard the SPT considered it to be an example of good practice where an NPM designed a matrix for use in following up on the recommendations set out in the Subcommittee’s earlier visit report to the State party concerned.23 Moreover, (p. 948) the SPT encouraged an NPM to consider holding a national workshop to adopt a programme for the implementation of the recommendations made by the SPT as another means of bearing this responsibility.24

15  As to the dialogue on implementation, the SPT has given some indications over time how it could be held. In this regard, the SPT has only occasionally itself voiced possible scenarios for the State party to implement its obligation to engage in a ‘meaningful dialogue’.25 Instead, it has focused more on defining the NPMs’ envisaged role in this process, seeing it as an activity included in the mandate of the NPM to engage ‘in a meaningful process of dialogue’ concerning the implementation of its recommendations with, apart from other stakeholders, the State party responsible.26 For a meaningful, ie effective, dialogue, mechanisms for follow-up are necessary.27

16  The SPT has recommended to ‘put in place a follow-up strategy that is clear and impact-oriented and develop the practices and tools necessary to implement the strategy’.28 Follow-up with the State authorities is only one part of an NPM’s follow-up strategy that should, according to the SPT, include to ‘regularly verify the implementation of recommendations, primarily through follow-up visits to problematic institutions, but also based on relevant information from, among others, human rights bodies, governmental institutions and civil society’.29 For the here relevant part of follow-up with the State party, different elements are to be considered.

17  A database of recommendations is necessary in order to be able to measure the progress of implementation of the recommendations. In its Assessment Tool, the SPT recommended that the NPMs systematize their experiences, to 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.30

18  The term ‘implementation’ provokes the question of how its achievement can be identified. When developing a policy or plan and considering its approach to the monitoring of implementation,31 an NPM may consider how it will measure implementation at the time of drafting recommendations and have a strategy in place to consider how it will present its assessment of the level of implementation.32 The decision as to whether or not the benchmarks have been reached will be based on a multidisciplinary approach, (p. 949) the experience of the NPM and knowledge of the context and engaging with various experts.33

19  The SPT envisages the NPM to request the competent authorities to develop policies or action plans.34 In fact, action plans are a practical tool to measure implementation, to strategically work towards the implementation of recommendations through a set of agreed measures as well as to support and evaluate the steps taken by the authorities.35

20  The process to follow up the implementation of the action plan should, as envisaged by the SPT, involve both written and oral exchanges on the implementation of the recommendations.36 The personal exchange with the authorities starts with the direct dialogue at a follow-up visit or subsequent visit with a follow-up element. This is again particularly useful in regard to privately administered places of detention, as they are not part of the NPM’s dialogue with the State.37 Personal exchange should also involve regular meetings, round-tables, or working groups, etc. The process and its format depend on the access to and relationship with the States authorities. While regular personal contact can build trust, resolve possible deadlocks in the dialogue with the authorities, enable the findings to be explained in more detail, and encourage the implementation of recommendations, meetings should be held in an effective and resource-efficient manner in order to ensure that the NPM maintains professional distance safeguarding its position as independent actor.38 As an institutionalized format for high level exchange and follow-up to the NPMs’ annual reports, the SPT urges States parties to introduce an ‘institutional forum’.39

21  An EU-wide study has identified and analysed the different ways how NPMs follow up and promote the implementation of recommendations. It has found that with most NPMs the measures move along the familiar paths, namely follow-up visits and written dialogue during the drafting of the reports. Formats for direct exchanges with the authorities are largely underdeveloped although some interesting practices were identified and exchanged among NPMs. Moreover the study found that most NPMs lack a strategic approach on how to follow up their recommendations and achieve lasting change. It thus suggested ‘building blocks’ of an effective follow-up strategy for NPMs and recommended that NPMs develop ‘pathways of change’ to increase the impact of their work.40

22  No consequences are foreseen in the Optional Protocol if States parties refuse to cooperate with their NPM or to take steps to improve the situation in light of the NPM’s recommendations. This is in contrast to the provisions relating to non-cooperation with the Subcommittee, which provide that such violation of the principle of cooperation lead to sanctions in accordance with Article 16(4), namely a public statement by the Committee against Torture or its decision to publish the entire mission report of the Subcommittee.41 However, unlike the SPT with its mission reports and recommendations, the NPM can—and should—publish their reports in any case.42

(p. 950) 23  Cooperating with NPMs in different countries, the SPT has found that, in cases where ombudsman’s offices (NHRIs) have taken on the mandate of NPMs

it has been difficult for them to build the kind of constructive dialogue envisaged in the Optional Protocol because the authorities have been unable to distinguish clearly between the preventive and reactive roles of these bodies. Since the role of ombudsman’s offices involves taking a critical look at State action, calling attention to problems when they arise and processing individual complaints, among other functions, the authorities are often reluctant to cooperate, especially where ombudsman’s offices participate in judicial proceedings or are authorized to bring cases before a judge or prosecutor where there is evidence of criminal liability.43

The SPT recommends that such an Ombudsman institution ‘clarify the nature of the principle that guides its work, which is based on sustained cooperation and dialogue over the long term as a means of assisting the authorities to make any changes required to prevent torture and ill-treatment’.44

Stephanie Krisper

Footnotes:

1  See above Art 12 OP, 3.

2  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.

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 tenth session [2002] UN Doc E/CN.4/2002/78, Annex I.

4  APT and IIDH, Optional Protocol to the UN Convention Against Torture: Implementation Manual (rev edn, APT and IIDH 2010) 100.

5  In this sense, the SPT states that the NPM ‘should maintain a constructive dialogue with, firstly, those to whom the recommendations are addressed, namely, governmental authorities and the directors/managers of the places of detention concerned, but also with their supervising authorities’: SPT, ‘Analytical Assessment Tool for National Preventive Mechanisms’ (2016) UN Doc CAT/OP/1/Rev.1, para 34.

6  See above Art 19 OP, 3.2.3.1.

7  SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of Moldova, Report to State Party’ (2013) UN Doc CAT/OP/MDA/1, para 27; 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 40.

8  APT (ed), Guide: Establishment and Designation of National Preventive Mechanisms (APT 2006) 65; Moritz Birk and others, ‘Enhancing Impact of National Preventive Mechanisms, Strengthening the Follow-up on NPM Recommendations in the EU: Strategic Development, Current Practices and the Way Forward’ (Ludwig Boltzmann Institute of Human Rights 2015) 47 <https://bim.lbg.ac.at/sites/files/bim/anhang/publikationen/enhancing_impact_of_national_preventive_mechanisms_0.pdf> accessed 12 December 2018: ‘in many countries such as Austria, Estonia, France, Germany, Malta and Slovenia the authorities are required in domestic law to respond to the recommendations within a stated timeframe or a ‘suitable period’ (Germany). In Bulgaria, the timeframe specifies that the authorities notify the Ombudsman within one month of any action taken to address the recommendations; for Portugal it is 60 days, although for urgent matters the timeframe is 10 days.’

9  APT, Guide (n 8) 65, referring to Czech NPM.

10  See above Art 12 OP, § 34.

11  CAT/OP/1/Rev.1 (n 5) para 41; APT, Guide (n 8) 64. For example, in the UK there is a multiple NPM structure. There are legislative provisions for particular state authorities to respond to NPM recommendations. Thus in England and Wales the local policing bodies must prepare comments and invite the chief constable to submit comments on the published report of Her Majesty’s Inspectorate of Constabulary (HMIC).

12  SPT, ‘Report on the Visit to Mexico’ (2010) UN Doc CAT/OP/MEX/1, para 32.

13  SPT, ‘Guidelines on National Preventive Mechanisms’ (2010) UN Doc CAT/OP/12/5, para 28.

14  SPT, ‘Third Annual Report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (2010) UN Doc CAT/C/44/2, para 50.

15  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’ (2010) UN Doc CAT/OP/HND/3, para 28; 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 31; 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 59.

16  See above Art 19 OP, 3.2.3.

17  CAT/OP/HND/3 (n 15) para 29; CAT/OP/MDA/2 (n 15) para 32, with ‘develop’ instead of ‘devise’; CAT/OP/ARM/2 (n 15) para 58.

18  See above Art 19 OP, § 18.

19  See above Art 12 OP, § 34. In this sense, the SPT stated in its Assessment Tool that ‘[t]hose to whom the recommendations are addressed should, on request from the mechanism, develop a concrete policy or plan of action to commence reform where needed’, in CAT/OP/1/Rev.1 (n 5) para 34; in one mission report, the SPT even recommended that ‘the State Party issue an annual report describing the effectiveness of the interaction of the Government with the NPM in assessing and eradicating torture and ill-treatment in places of detention’: SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of the Republic of Armenia’ (2015) UN Doc CAT/OP/ARM/1, para 42.

20  SPT, ‘Report on the Visit to Benin’ (2011) UN Doc CAT/OP/BEN/1, para 24; SPT, ‘Report on the Visit to Sweden’ (2008) UN Doc CAT/OP/SWE/1, para 40.

21  Rachel Murray and others, The Optional Protocol to the UN Convention against Torture (Oxford University Press 2011) 217; CAT/OP/12/5 (n 13) para 38.

22  CAT/OP/1/Rev.1 (n 5) para 9(i); see also CAT/OP/HND/3 (n 15) para 16.

23  CAT/OP/HND/3 (n 15) para 16.

24  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 59.

25  CAT/OP/MDA/1 (n 7) para 27; In this sense, CAT/OP/DEU/1 (n 7) para 48.

26  CAT/OP/1/Rev.1 (n 5) para 9(a). In its Guidelines, the SPT stated that the NPM ‘should ensure that it has the capacity to and does engage in a meaningful process of dialogue with the State concerning the implementation of its recommendations’: CAT/OP/12/5 (n 13) para 38.

27  In this sense, the SPT recommended in one mission report that the NPM ‘set up mechanisms for following up on its recommendations and that it do this, insofar as possible, in conjunction with the authorities’: CAT/OP/HND/3 (n 15) para 29.

28  CAT/OP/1/Rev.1 (n 5) para 33; 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 72; CAT/OP/MDA/2 (n 15) para 32; CAT/OP/ARM/2 (n 15) para 60.

29  CAT/OP/1/Rev.1 (n 5) para 33.

30  CAT/OP/1/Rev.1 (n 5) para 45; see also Birk and others (n 8) 42.

31  Birk and others (n 8) 25–26.

32  ibid 27.

33  ibid 26–27.

34  According to the Assessment Tool, CAT/OP/1/Rev.1 (n 5) para 34, those to whom the recommendations are addressed ‘should, on request from the mechanism, develop a concrete policy or plan of action to commence reform where needed.’

35  Birk and others (n 8) 54; with examples, 54–55.

36  CAT/OP/1/Rev.1 (n 5) para 34.

37  Birk and others (n 8) 50.

38  ibid 55–57.

39  CAT/OP/ARM/1 (n 19) para 41; see also SPT, ‘Visit to the Netherlands for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism: Recommendations and Observations Addressed to the State Party’ (2016) UN Doc CAT/OP/NLD/1, para 35.

40  Birk and others (n 8) 87–110.

41  See above Art 16 OP, para 3.

42  See Art 21 OP, 3.2.2.

43  SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of Ecuador, Report for the National Preventive Mechanism’ (2015) UN Doc CAT/OP/ECU/2, para 32.

44  ibid, para 33.