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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.23 Annual Reports of 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: 25 January 2022

Subject(s):
Torture — Treaties, interpretation

(p. 951) Article 23  Annual Reports of the National Preventive Mechanisms

The States parties to the present Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms.

1.  Introduction

As with the Committee against Torture1 and the Subcommittee on Prevention,2 NPMs shall also prepare an annual report on their activities. While the annual reports of the Committee against Torture are submitted to the States parties of the Convention, and the annual reports of the Subcommittee on Prevention to the Committee against Torture, the final addressee of the NPMs’ annual reports is not limited to a specific body or group of persons.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

EU Draft (22 February 2001)3

Article 15 (new)

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

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

Proposal by the Chairperson-Rapporteur (17 January 2002)4

(p. 952)

Article 23

The States Parties to the present Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms.

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 the GRULAC.

With regard to the question of publicity, it was felt by most of the delegates that the national mechanisms should operate under the principle of publicity and that they should be able, at least, to publish annual reports. In this context, some delegations expressed the view that the question of publicity versus confidentiality that would arise from the publication of reports could be left to the national laws.5

At the tenth session of the Working Group from 14 to 25 January 2002,6 the issue of publicity was not elaborated any further.

3.  Issues of Interpretation

Article 23 OP obliges the States parties to ‘publish and disseminate’ the NPMs’ annual reports. While the States parties` obligation to ‘publish’ the report may be understood as simple information-giving exercise without much effort of outreach,7 the word ‘disseminate’ clarifies that the States parties should also inform the public at large. The SPT has clarified in its Guidelines that the State should publish and ‘widely disseminate’ the annual report of the NPM.8 The State should ‘also ensure that it is presented to, and discussed in, by the national legislative assembly, or Parliament’.9 Mention of this obligation should be made in the NPM law.10 Depending on the public character and media coverage of Parliamentary discussions, this format can help for public reach. For the discussion and follow-up to the NPMs’ annual reports, the SPT urged States parties to introduce an ‘institutional forum’.11

(p. 953) The SPT also noted vis-à-vis the State party that the NPM should transmit its annual reports to the SPT, also for publication on its website.12 This transmission of the report is one way of dialogue and information-sharing between the NPM and the SPT in accordance with the principle of cooperation.

The OP does not prescribe the content of annual reports. The SPT elaborated in its Assessment Tool that annual reports should ‘include, in addition to recommendations for change, the outcome of the dialogue with authorities, ie, follow-up on recommendations mentioned in previous annual reports. The mechanism may also publish thematic reports.’13 It concretized on the reports’ content:

  1. (a)  Accounts of current challenges to the protection of the rights of persons deprived of their liberty and to the effective execution of the mechanism’s mandate, and strategic short-term and longer term plans, including with respect to setting priorities;

  2. (b)  Analysis of the most important findings and an account of recommendations and the responses of the authorities thereto;

  3. (c)  Follow-up on issues outstanding from previously published reports;

  4. (d)  Consideration of thematic issues;

  5. (e)  Accounts of cooperation with other actors on the prevention of torture;

  6. (f)  An overview of all other national preventive mechanism activities undertaken and their outcomes.14

Stephanie Krisper

Footnotes:

1  See above Art 24.

2  See above Art 16(3) OP.

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 II.

4  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.

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 ninth session [2001] UN Doc E/CN.4/2001/67, para 46.

6  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.

7  Rachel Murray, ‘National Preventive Mechanisms Under the Optional Protocol to the Torture Convention: One Size Does Not Fit All’ (2008) 26 Netherlands Quarterly of Human Rights 485, 514.

8  SPT, ‘Guidelines on National Preventive Mechanisms’ (2010) UN Doc CAT/OP/12/5, para 29. See also SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of the Netherlands: Recommendations and Observations Addressed to the State Party’ (2016) UN Doc CAT/OP/NLD/1, para 35; SPT, ‘Report on the Visit to Brazil’ (2012) UN Doc CAT/OP/BRA/1, para 10.

9  CAT/OP/12/5 (n 8) para 29.

10  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; see also SPT, ‘Report on the Visit for the Purpose of Providing Advisory Assistance to the National Preventive Mechanism of Moldova, Report to State Party’ (2014) UN Doc CAT/OP/MDA/1, para 31(i).

11  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 41; see also CAT/OP/NLD/1 (n 8) para 35. Besides of being an essential tool for transparency, accountability and raising awareness of the work of the NPM, the annual reports can be used as part of the tools for dialogue with the authorities and may contribute to the process of evaluating implementation and informing any policy reform; in 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) 31–33 <http://https://bim.lbg.ac.at/sites/files/bim/anhang/publikationen/enhancing_impact_of_national_preventive_mechanisms_0.pdf> accessed 12 December 2018.

12  CAT/OP/12/5 (n 8) para 29; CAT/OP/BRA/1 (n 8) para 12. If the designated NPM is part of an institution, its annual report should be published as a separate report or, at the very least, it should be afforded a separate chapter in the institution’s general annual report; in APT and IIDH, Optional Protocol to the UN Convention Against Torture: Implementation Manual (rev edn, APT and IIDH 2010) 102–103; see also 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 61.

14  ibid, para 47.