4.3.2 Prevention of torture
NHRIs are expected to become even more involved and visible as regards the prevention of torture with the entry into force of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The objective of the 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.
NHRIs designated as “national preventive mechanisms” under the Protocol have the legal mandate to inspect prisons, by establishing systems of regular visits to places of detention. According to responses to a questionnaire sent by the OHCHR, some 35 NHRIs are already actively engaged in torture prevention activities.
A guide to creating National Preventive Mechanisms by the Association for the Prevention of Torture makes the following recommendations:
- States can choose either to designate an existing mechanism or to create an entirely new mechanism. Neither model is universally inherently better than the other.
- Civil society must be included in the process of deciding whether to use an existing or create a new mechanism.
- Before designating an existing institution, the government and civil society must carefully and exhaustive [sic] review its mandate, jurisdiction, independence, powers and guarantees, to ensure that it fully complies with OPCAT requirements, make any necessary legislative amendments and provide any increase in resources required.8
It should be noted that regardless of whether a NHRI is formally designated as a “national preventive mechanism”, the NHRI should nonetheless use its general mandate to monitor, review and comment on the status of detention facilities.
TABLE 3: NHRIS AND TORTURE PREVENTION9
| CAT CONVENTION |
Has the State made torture a criminal offence? NHRIs can advocate for this legislative provision if not.
Has the NHRI lobbied the State for the ratification of CAT and its Optional Protocol? This requires capacity to provide advice to government. |
| ACTION TAKEN | Does the NHRI submit opinions and recommendations based on their findings after a prison visit? This requires capacity to follow up with "ndings, analyzing results and reporting. |
| Does the NHRI provide training to the military, prison officers, law enforcement offcials, judges, lawyers, social workers and NGOs? This requires capacity to develop the promotion aspect of the mandate. | |
| Does the NHRI actively cooperate with the Special Rapporteur on Torture, the Committee against Torture or its Sub-Committee on Prevention? |
8 Association for the Prevention of Torture, Establishment and Designation of National Preventive Mechanisms, Geneva, 2006, p. 88. See Appendix 4.
9 This is adapted from OHCHR, Guidance Note: National Human Rights Institutions and the Work of OHCHR at Headquarters and Field Level, 2007, op. cit.