18 The proposal to establish a Special Fund based on voluntary contributions of States, intergovernmental organizations, NGOs, private institutions, and individuals was already included in Article 16 of the revised Costa Rica Draft of 199118 and was supported by most States during the drafting in the Working Group.19 While the activities of the SPT, including its country missions, are financed by the regular UN budget, the considerable costs necessary for a proper implementation of the provisions of the Protocol at the domestic level could be financed in poorer countries with the assistance of the Special Fund. Although the establishment of effective NPMs causes considerable expenses for States parties, the regular costs of NPMs, their members, staff and facilities, cannot be financed by the Special Fund. In this respect, Article 26(1) only refers to ‘education programmes’ of the NPMs. Why only this single aspect of the work of the NPMs was included in the text of Article 26 remains unclear. All previous drafts were fairly open and referred in general to the efforts of States parties to improve the protection of persons deprived of their liberty. But the Chairperson-Rapporteur, in her final draft of January 2002, included (p. 978) education programmes of the NPMs, which may lead to the conclusion that other activities of NPMs shall not be financed by the Fund, unless explicitly recommended by the SPT after a country mission in accordance with Article 11(b)(iv).
19 The main purpose of the Special Fund, which became operational in summer 2011, is ‘to help finance the implementation of the recommendations made by the Subcommittee on Prevention after a visit to a State party’. Earlier drafts had also required an ‘express request by a State party for assistance’20 or at least ‘expressing the need for additional assistance’.21 The deletion of these words in the final draft of the Chairperson suggests that the initiative might also come from the SPT. In any case, the SPT should at least be requested by the Board of Trustees to give its opinion on the usefulness of providing funds to a particular State party. Since such funds shall only be provided after a country mission by the SPT, a certain involvement of the SPT seems to be guaranteed. In our opinion this would be necessary in order to ensure that the funds are in fact spent on a project aimed at implementing the respective recommendations of the SPT. The SPT might also consider a follow-up mission in accordance with Article 13(4) OP for the purpose of assessing whether or not the funds are in fact spent accordingly.22
20 According to Article 11(a) OP, the SPT shall make recommendations on the basis of its country missions ‘concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment’.23 Possible projects to be financed by the Special Fund must, therefore, aim at improving conditions of detention, the protection of detainees against ill-treatment and/or the prevention of torture and other forms of ill-treatment during detention. This includes all programmes in the context of the reform of the criminal justice and prison system, for example the renovation of detention facilities, legislative reforms, training of judges, prosecutors, law enforcement officials and prison guards, review of interrogation methods, forensic examinations of detainees, anti-torture complaints and investigation mechanisms, anti-corruption programmes in the context of the administration of criminal justice, and all other measures aimed at the prevention of torture in accordance with the respective provisions of the CAT and other relevant UN and regional instruments.24
21 According to Article 11(b)(iv) OP, the SPT shall also make ‘recommendations and observations to the States Parties with a view to strengthening the capacity and the mandate of the national preventive mechanisms for the prevention of torture and other cruel, inhuman or degrading treatment or punishment’. If the SPT, on the basis of its contacts with NPMs and its experiences during a country mission, arrives at the conclusion that the respective NPM lacks the required characteristics of independence and effectiveness, as required by Article 18 OP, or lacks the capacity and resources to carry out its mandate effectively, it may make a respective recommendation on the strengthening of the NPM to the State party concerned, the implementation of which may also be assisted by a project financed by the Special Fund.
22 Article 26(1) OP provides that the Special Fund shall be ‘administered in accordance with the financial regulations and rules of the United Nations’. The Financial (p. 979) Regulations and Rules of the United Nations provide, in particular, that UN funds shall be administered by an independent Board of Trustees to be appointed by the General Assembly or by the States parties to the respective treaty.25 Thus, the Fund is currently being managed by the OHCHR, its Grants Committee acting as an advisory body. Since the main purpose of the Special Fund is to help finance the implementation of the SPT’s recommendations after its country missions, the SPT is consulted in the development and assessment of the projects to be financed by the Special Fund. Consequently, it identifies thematic priorities (by country) for the annual call for applications26 and—with the objective of funding—the implementation of recommendations contained in its mission reports. The SPT’s bureau is kept informed about the applications received and the grants awarded, and members of the SPT may generally be consulted on any issues arising from applications and asked to join relevant meetings.27
23 According to Article 26(2) OP, the Special Fund receives voluntary contributions from governments, intergovernmental and non-governmental organizations, and other private or public entities. As at 31 December 2011, contributions to the Special Fund in the amount of $855,263.16 had been received from the Maldives, the Czech Republic, Spain, and the UK.28 In 2012, it received contributions from the UK, the Czech Republic, Switzerland, and Italy.29 In its eighth Annual Report, the SPT stated that it hoped ‘that the Fund will continue to support projects that are essential for the effective prevention of torture and ill-treatment, and calls upon States to continue to support the Fund financially’.30 Moreover, the SPT expressed that it believed ‘that the work and visibility of the Fund would be enhanced were its administrative basis to be reviewed and a discrete Board of Trustees established to oversee its operation’.31 As in 2015 only one contribution was made to the Fund, the SPT established a working group ‘to review with the secretariat of the Fund how the work and visibility of the Fund could be maintained and enhanced’.32 Moreover, the working group should study the Fund’s administrative functions and explore the options for and possibilities of establishing an advisory mechanism to oversee its operation.33 Consequently, the Secretary-General called on governments, intergovernmental and non-governmental organizations, and other private or public entities to contribute to the Special Fund, and to ensure sustained financial support to it.34 As a considerable amount of money is required to finance the implementation of the various (p. 980) recommendations of the SPT, in the future, trans-national corporations and other business enterprises, above all members of the UN Global Compact, could also be encouraged, as part of their activities in the context of corporate social responsibility programmes, to provide contributions to the Special Fund.
24 Applications for funding may be submitted by State institutions of States parties to the OP visited by the SPT and that have agreed upon the publication of the SPT report, and the NPMs of the said States parties. Moreover, applications from NHRIs compliant with the Paris Principles as well as from NGOs are eligible if the proposed projects are to be implemented in cooperation with eligible States parties or NPMs.
25 Until the end of 2015, the Fund had supported
a total of 28 projects with a total amount of $ 801,197.85 in eight States across three regions, including the training of more than 1,300 people in torture prevention techniques and methodology, in particular staff members of national preventive mechanisms, members of the judiciary, law enforcement and penitentiary officers, medical personnel, social workers and members of civil society organizations.35
26 The projects supported by the Fund so far included legislative and policy changes (eg the adoption of a revised Code of Criminal Procedure in Benin, a Prison Act in Honduras, and a law prohibiting abusive body search for persons deprived of their liberty in Brazil), institutional changes (such as the development of a registry of detainees in Paraguay and an improved form for medical and legal examination of torture and ill-treatment in hospitals in the Maldives), as well as changes in peoples’ lives (eg some detainees held without justification could have been released). The Fund’s main focus, however, remains the support for NPMs.