In 2006, with the entry into force of the Optional Protocol of the Convention Against Torture (OPCAT),1 the Sub-Committee on the Prevention of Torture (SPT) was also established. Initially composed of ten members, it now has twenty-five, following an expansion triggered by the fiftieth ratification of the Protocol in 2010, pursuant to article 5 OPCAT.
This essay will focus on the issue of visits to places of detention: What challenges does the SPT face with regard to those visits? What is the cause of that? Can it be remedied?
Fathi notes, writing about prisoners in the United States, that: “no group is so completely disabled from defending its rights and interests”. The same holds to a agree for a those who are deprived of their liberty. Detention makes people vulnerable in other ways, too, notably that one is obscured from public view. And this is where the crux of this essay lies. It has been noted, for example by Silvia Casale,2 that visits to places of detention can incur ill-treatment of detainees in the time leading up to a visit or in the aftermath, precisely because of their being detained and out of the public view.3 The OPCAT and the SPT it creates quite specifically have as their stated purpose the prevention and ultimate eradication of torture and cruel and inhuman treatment. What if, ironically, the work of the SPT has as its corollary exactly that, some or other form of ill-treatment, if not actually torture. For those detained and obscured from public view are likely scapegoats and easy targets for reprisals by the State following the perceived public humiliation of a negative report on that a States Party treatment of detainees.
The question this essay seeks to answer then, is as follows: Does the OPCAT currently provide a powerful enough mandate to the SPT to combat the possibility of reprisal against its sources of information, and does the OPCAT allow for other solutions?
Methodology & Outline
To answer the question just posed in the introduction, the following research methods were used. Literature on the topic of the SPT’s functioning is somewhat scarce. Still, some work has been done and, of course, the SPT’s own annual reports to the CAT are a good primary source of information. First general books were consulted and further secondary sources such as books and articles more specific to SPT, the OPCAT, and their functioning were researched.
The outline of the essay is as follows. First, the coming into being of the SPT will be briefly discussed, as well the scope of its founding document, and the SPT’s mandate. Second, possible solutions that will contribute to better protection for sources will be discussed. Third and also final a conclusion is drawn.
Coming into being, Scope, and Mandate
This section will briefly asses the coming into being of the SPT, as well as its mandate. The SPT was established with the entry into force of the OPCAT, art. 1 of which states that its objective is to “establish a system of regular visits … to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.” To this end, art. 2(1) OPCAT establishes the SPT, to carry out this function. The OPCAT also obliges each State Party to designate, maintain or establish independent national bodies for the prevention of torture and ill-treatment at the domestic level. These National Preventive Mechanisms (NPM) must be established one year after the OPCAT enters into force, art. 17 OPCAT.4
The SPT’s mandate, set out in art. 11 OPCAT, has three components: inspecting, advising/assisting, and cooperating.5 The inspection role is fulfilled by visiting places of detention in States Parties. The advisory and assisting role consists of giving advice and/or assisting States Parties, for example on the establishment of their National Preventive Mechanisms. The meaning of the co-operative aspect is less well defined. For the purpose of this essay, it suffices to note it includes working with other organizations, such as international and regional human rights promoting (non-governmental) organizations working to strengthen protection against torture and ill-treatment.
The SPT’s mandate is not limited to prisons. Places of detention, or places where persons are deprived of liberty, as referred to in articles 4 and 12 OPCAT, are not limited to prisons or police stations, and should be understood to include refugee camps, psychiatric institutions, care homes for the elderly, and other similar places.6 The obligation of States Parties to cooperate is in theory quite broad. Art. 14 OPCAT obligates them to grant full access to information and, importantly for the purpose of this essay, private interviews with detainees, without any witness present. This, in theory, keeps the SPT’s sources of information safe from reprisal. In practice this may not be enough.7
One way to find out if the SPT’s sources have been subject to reprisal would be ad hoc visits. For the SPT, the possibility of ad hoc visits does seem to exist, however not in such a way as to provide sufficient oversight. This possibility exists only following an SPT delegations arrival in the State Party on a ‘mission’. This mission is the overarching visit to a State Party, and does have to be announced. Art. 13(1) obliges the SPT to establish “regular programme of visits” to the States Parties to which it intends to undertake a mission.8 Once ‘on the ground’ in the State Party, the SPT may then make ad hoc visits to individual places of detention.9 The announcement of the mission nevertheless leaves ample time for officials to instruct or even threaten detainees not to speak candidly to members of the SPT. Art. 13(4) allows the SPT to propose a short follow-up visit, but again this has to be announced, and thus does not provide as objective a view as is desirable. This author would agree with Egan that ad hoc visits are vital, indispensable even, for drawing an accurate picture of detention conditions.10 Rodley also notes that random or ad hoc follow-up visits provide a way of ensuring that sources are not subject to reprisal.11 But, as established above, visits by the SPT are never truly ad hoc. Although the SPT has expressed a desire for the possibility of other types of visits,12 in this case consultative ones, the two types of visit just described are currently the only two provided for in the OPCAT.13
Although uncooperative States may be subject to the publication of the otherwise confidential SPT report, this decision cannot be taken by the SPT itself, but only by the Committee Against Torture (CAT).14 Even then, exceptional circumstances would be required.
Perhaps the OPCAT has the cure for this ill already built into it. The NPM’s are closer in proximity to the places of detention and officials there than any SPT delegation conducting a visit could be. This proximity allows them to visit more frequently, and also truly ad hoc, unannounced. Thus removing, to the greatest extent reachable, to the possibility of officials interfering with the results of that visit by instructing, threatening, or otherwise influencing detainees.
From its inception however, the SPT’s interaction with NPM’s, as well as the conducting of visits, has been hampered by underfunding.15 The SPT reported on this underfunding in its first five annual reports. In its eighth year in function, the SPT again reported being underfunded.16
A better funded and stronger relationship between de SPT and the NPM’s would give support to NPM’s in cases where the State Party views even its own NPM with suspicion and establishes one more as a formality than an actual commitment to preventing torture. A closer relationship with the SPT would allow for a greater measure of oversight by the SPT, thus ensuring a greater degree of autonomy, independence and objectivity of a well-intentioned NPM in a hostile environment. Moreover, according to Egan view of a ‘purposive interpretation’ of the OPCAT, NPM’s can make ad hoc visits to places of detention.17 Contrary to the SPT visits, these could be truly ad hoc, since no prior announcement of the wider mission is called for. They could, therefore, provide the oversight needed to effectively protect sources.
At the regional level, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) the power to conduct ad hoc visits.18 In the Council of Europe legal space, the SPT could, according to art. 11(1)(c) OPCAT, cooperate with the CPT to monitor the treatment of detainees after an SPT visit, especially in cases when an impartial and objective NPM cannot be relied upon. 19 To complement each other’s visiting of detention facilities, the SPT and CPT would have to share information, which would currently be in breach of the confidentiality of the reports. According to Gauthier, this could be remedied by States Parties agreeing to allow the SPT and CPT (or other regional organization, as the case may be) to share their findings confidentially, but not publicly.20 Gauthier also identifies a possible problem with regard to differing standards. To avoid the use of discrepant standards, the SPT could apply regional standards.
State sovereignty still being the main principle by which States operate internationally, the possibility of treaty body at the global level with the power to conduct ad hoc visits whenever and wherever it pleases seems remote. Nevertheless, that power would in my view likely empower the SPT to better protect its sources. Fortunately, this is not the only option. A closer relationship with the NPM’s, and better funding to achieve this would also provide a greater measure of protection. Alternatively, and where such organizations exist, cooperation with regional bodies with the power to conduct ad hoc visits would provide the same. Since the purpose of the OPCAT and the SPT is the prevention of torture. The SPT’s mandate on cooperation in art. 14(1)(c) OPCAT more than allows for the cooperation with NPM’s and regional bodies such as the CPT in Europe, to achieve better protection for sources.
1 UN General Assembly, Optional Protocol to the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, 9 January 2003, A/RES/57/199, UNTS
2 Dr. Silvia Casale is former member (1997 to 2009) and President (2000 to 2007) of the CPT, as well as a member of the SPT and its first President (2007 to 2009).
3 Silvia Casale,’A System of Preventive Oversight’ 2009 6:1 Essex Human Rights Review 9-19.
4 Postponement of maximum three years is allowed for in art. 24 OPCAT.
5 Rachel Murray, Elina Steinerte, Malcolm Evans and Antenor Hallo De Wolf, The Optional Protocol to the UN Convention Against Torture (Oxford University Press, 2011), p. 90.
6 Rachel Murray, Elina Steinerte, Malcolm Evans and Antenor Hallo De Wolf, The Optional Protocol to the UN Convention Against Torture (Oxford University Press, 2011), p. 68, 73-77, see also Suzanne Egan, The Optional Protocol to the Convention against Torture: Paying the Price for Prevention, 44 Irish Jurist (New Series) 182, p. 187.
7 Silvia Casale,’A System of Preventive Oversight’ 2009 6:1 Essex Human Rights Review 9, p. 13.
8 Rachel Murray, Elina Steinerte, Malcolm Evans and Antenor Hallo De Wolf, The Optional Protocol to the UN Convention Against Torture (Oxford University Press, 2011), p. 98.
9 Suzanne Egan, ‘The Optional Protocol to the Convention against Torture: Paying the Price for Prevention’ 2009, 44 Irish Jurist (New Series) 182, p. 188.
10 Suzanne Egan, ‘The Optional Protocol to the Convention against Torture: Paying the Price for Prevention’ 2009, 44 Irish Jurist (New Series) 182, p. 189.
11 Nigel S. Rodley, ‘Reflections on Working for the Prevention of Torture’ 2009, 6:1 Essex Human Rights Review 15, p. 17.
12 Subcommittee on Prevention of Torture (SPT), Fourth Annual Report of the Subcommittee on Prevention of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 3 February 2011, CAT/C/46/2, para. 45.
13 Elina Steinerte, ‘The Changing Nature of the Relationship between the United Nations Subcommittee on Prevention of Torture and National Preventative Mechanisms: In Search for Equilibrium’ 2013, 31 Netherlands Quarterly of Human Rights 132, p. 145.
14 Suzanne Egan, ‘The Optional Protocol to the Convention against Torture: Paying the Price for Prevention’ 2009, 44 Irish Jurist (New Series) 182, p. 190.
15 Subcommittee on Prevention of Torture (SPT), First Annual Report of the Subcommittee on Prevention of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 7 April 2009, CAT/C/40/2, para. 5.
16 Subcommittee on Prevention of Torture (SPT), Eighth Annual Report of the Subcommittee on Prevention of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 26 March 2015, CAT/C/54/2, paras. 98-101.
17 Suzanne Egan, ‘The Optional Protocol to the Convention against Torture: Paying the Price for Prevention’ 2009, 44 Irish Jurist (New Series) 182, p. 194.
18 Art. 7(1) European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT).
19 Gauthier de Beco, ‘The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (the OPCAT) in Europe: Duplication or Reinforcement’ 2011, 18 Maastricht Journal European & Comparative Law 257, p. 271.