This lesson provides the key provisions of the Optional Protocol. The full text can be accessed at http://www.ohchr.org/english/law/cat-one.htm.

Overview of OPCAT

The OPCAT was adopted on 18 December 2006 at the 57th session of the UN General Assembly. It entered into force on 22 June 2006. As of March 2007, 57 countries had signed the Protocol, while 33 had ratified or acceded.

The Subcommittee, as established under the OPCAT, will be the first international expert body with jurisdiction to carry out inspections of detention centres with the express objective of preventing torture. The dual approach of OPCAT, encompassing international and domestic strategies, can ensure more effective torture prevention.

Although the preventive mechanisms designated under the OPCAT will focus on the prevention of torture and other forms of ill-treatment, this does not exclude the possibility for the mechanisms to have a broader mandate. Indeed, they should take into account other related human rights violations that persons deprived of their liberty may be subjected to.

Civil society and concerned groups should play a key role in raising public awareness regarding the usefulness of the OPCAT, as well as establishing national mechanisms.

Objectives

Article 1
The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.
 
Article 2
1. A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture (hereinafter referred to as the Subcommittee on Prevention) shall be established and shall carry out the functions laid down in the present Protocol.

Article 3
Each State Party shall set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as the national preventive mechanism).

Article 4
1. Each State Party shall allow visits, in accordance with the present Protocol, by the mechanisms referred to in articles 2 and 3 to any place under its jurisdiction and control where persons are or may be deprived of their liberty… These visits shall be undertaken with a view to strengthening, if necessary, the protection of these persons against torture and other cruel, inhuman or degrading treatment or punishment.

2. For the purposes of the present Protocol, deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.

Places of detention can include police stations, security force stations, pre-trial centres, remand prisons, prisons for sentenced persons, juvenile centres, immigration centres, centres for detained asylum seekers, psychiatric institutions and places of administrative detention. It is important that the definition of detention be as inclusive as possible, and take into account local realities.

Subcommittee on Prevention

Article 11
1. The Subcommittee on Prevention shall:
(a) Visit the places referred to in article 4 and make recommendations to States Parties concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;
(b) In regard to the national preventive mechanisms:
(i) Advise and assist States Parties, when necessary, in their establishment;
iii) Maintain direct, and if necessary confidential, contact with the national preventive mechanisms and offer them training and technical assistance with a view to strengthening their capacities;
(iii) Advise and assist them in the evaluation of the needs and the means necessary to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;
(iv) 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;
(c) Cooperate, for the prevention of torture in general, with the relevant United Nations organs and mechanisms as well as with the international, regional and national institutions or organizations working towards the strengthening of the protection of all persons against torture and other cruel, inhuman or degrading treatment or punishment.

The three main responsibilities of the Subcommittee are hence to visit all places of detention, to assist and advise governments and national preventive mechanisms, and to integrate with existing mechanisms.

The Subcommittee is mandated to carry out regular and follow up visits to any place of detention within the jurisdiction of State Parties. Its advisory function relates to assisting countries with the establishment and functioning of national preventive mechanisms. Furthermore, the Subcommittee can work directly with these national mechanisms by offering training or other services. It should also coordinate with UN bodies, as well as regional and international groups working on torture related issues.

Article 13
3. The visits shall be conducted by at least two members of the Subcommittee on Prevention. These members may be accompanied, if needed, by experts of demonstrated professional experience and knowledge in the fields covered by the present Protocol who shall be selected from a roster of experts prepared on the basis of proposals made by the States Parties, the Office of the United Nations High Commissioner for Human Rights and the United Nations Centre for International Crime Prevention. In preparing the roster, the States Parties concerned shall propose no more than five national experts. The State Party concerned may oppose the inclusion of a specific expert in the visit, whereupon the Subcommittee on Prevention shall propose another expert.

Article 16
1. The Subcommittee on Prevention shall communicate its recommendations and observations confidentially to the State Party and, if relevant, to the national preventive mechanism.
2. The Subcommittee on Prevention shall publish its report, together with any comments of the State Party concerned, whenever requested to do so by that State Party. If the State Party makes part of the report public, the Subcommittee on Prevention may publish the report in whole or in part. However, no personal data shall be published without the express consent of the person concerned.
3. The Subcommittee on Prevention shall present a public annual report on its activities to the Committee against Torture.
4. If the State Party refuses to cooperate with the Subcommittee on Prevention according to articles 12 and 14, or to take steps to improve the situation in the light of the Subcommittee’s recommendations, the Committee against Torture may, at the request of the Subcommittee on Prevention, decide, by a majority of its members, after the State Party has had an opportunity to make its views known, to make a public statement on the matter or to publish the report of the Subcommittee.

State obligations

Article 12
In order to enable the Subcommittee on Prevention to comply with its mandate as laid out in article 11, the States Parties undertake:
(a) To receive the Subcommittee on Prevention in their territory and grant it access to the places of detention as defined in article 4 of the present Protocol;
(b) To provide all relevant information the Subcommittee on Prevention may request to evaluate the needs and measures that should be adopted to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;
(c) To encourage and facilitate contacts between the Subcommittee on Prevention and the national preventive mechanisms;
(d) To examine the recommendations of the Subcommittee on Prevention and enter into dialogue with it on possible implementation measures.

Article 14
2. Objection to a visit to a particular place of detention may be made only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit. The existence of a declared state of emergency as such shall not be invoked by a State Party as a reason to object to a visit.

Article 15
No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the Subcommittee on Prevention or to its delegates any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

National preventive mechanisms

Article 17
Each State Party shall maintain, designate or establish, at the latest one year after the entry into force of the present Protocol or of its ratification or accession, one or several independent national preventive mechanisms for the prevention of torture at the domestic level. Mechanisms established by decentralized units may be designated as national preventive mechanisms for the purposes of the present Protocol if they are in conformity with its provisions.

Article 18
1. The States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel.
2. The States Parties shall take the necessary measures to ensure that the experts of the national preventive mechanism have the required capabilities and professional knowledge. They shall strive for a gender balance and the adequate representation of ethnic and minority groups in the country.
3. The States Parties undertake to make available the necessary resources for the functioning of the national preventive mechanisms.
4. When establishing national preventive mechanisms, States Parties shall give due consideration to the Principles relating to the status of national institutions for the promotion and protection of human rights.

The 'Principles' refer to the Paris Principles, which set out criteria for the effective functioning of national human rights institutions and provide an important resource for the establishment of national preventive mechanisms. However, this in no way means that the preventive mechanisms should only take the form set out by the Paris Principles.

Article 19
The national preventive mechanisms shall be granted at a minimum the power:
(a) To regularly examine the treatment of the persons deprived of their liberty in places of detention as defined in article 4, with a view to strengthening, if necessary, their protection against torture, cruel, inhuman or degrading treatment or punishment;
(b) To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;
(c) To submit proposals and observations concerning existing or draft legislation.

The national preventive mechanisms are hence given the same mandate as the Subcommittee, to conduct regular visits to places of detention and to make recommendations to improve the treatment and conditions of detainees. It is important to note that this includes but is not limited to torture; their rights to adequate food, medicine and to receive visitors for instance, can also be monitored. Furthermore, they may submit proposals and comments regarding legislation related to torture, thereby giving them an opportunity to shape domestic policies and procedures.

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.

Article 23
The States Parties to the present Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms.

Questions For Discussion

1. Discuss the strengths and weaknesses of the OPCAT.
2. In your opinion, what is the most effective form for a national preventive mechanism to take?
3. Are there organizations in your country already working towards similar objectives, which can work together with such a national preventive mechanism?
4. Is your country a party to the Convention against Torture? If yes, discuss initiating a campaign for the ratification of the OPCAT. If no, discuss initiating a campaign for the ratification of the CAT.