By Marie Steinbrecher
The Optional Protocol to the Convention against Torture (OPCAT) obliges State Parties to designate a National Preventive Mechanism (NPM). NPMs are mandated to visit all places of deprivation of liberty to prevent torture and ill-treatment. To date, over 80 States have ratified OPCAT and must allow independent oversight of their detention facilities.
What is preventive monitoring?
Places of deprivation of liberty may be an odd phrase, but it is chosen deliberately. The list of places where people can be deprived of their liberty is long, and the definition is sufficiently broad to include traditional places (e.g. prisons, immigration detention) as well as non-traditional places (e.g. psychiatric hospitals, homes for the elderly).
Preventive monitoring performs a crucial function: It helps to protect the rights of people deprived of their liberty and ensure that they are not mistreated. To this end, NPMs fulfil a number of functions, the most important of which is visits to places of deprivation of liberty. NPMs visit all places within the country –prisons, police facilities, orphanages, psychiatric institutions and many more. The idea behind this is that the authorities, such the prison governor and guards, never know when the mechanism might enter. This should deter authorities from committing any acts of torture and it should allow NPMs to uncover actual torture and any risks for this to happen in the future. Even more important are the recommendations that NPMs write. States must discuss their implementation and NPMs follow up in later visits to assess if the situation has improved. Hence, there should be a positive development over time.
How people question preventive monitoring:
People might question the usefulness of preventive monitoring. Often, one of two misconceived arguments is made. The first is that people deprived of their liberty, especially prisoners or individuals in immigration detention, do not deserve to have their rights protected, or to have any rights at all. Torture might even form part of their punishment, and they deserve to be treated roughly. The second is that torture does not occur in Western countries, especially in Europe. This means that preventive monitoring is unnecessary and potentially wasting resources that could be used elsewhere.
Responses to both challenges:
1. The spirit of OPCAT
Torture is illegal and one of four rights that are non-derogable: This means that no exception, defence or justification is permitted for its use. Every State is obliged to prevent torture and to prosecute acts of torture. While this already shows the need for preventive monitoring, OPCAT is also about the lived experience of people deprived of their liberty. It is about understanding what deprivation of liberty means in order to prevent harm. Nelson Mandela captured this in his book A Long Walk to Freedom: “A Nation should not be judged by how it treats its highest citizens, but its lowest ones.”
Prisoners are convicted criminals and have been imprisoned as punishment. This does not mean, however, that the infringement of other rights should form part of this punishment: We should not forget that prisoners’ rights are already heavily regulated (such as freedom of movement). Moreover, excessive punishment has not been proven to have positive effects on reoffending (examples of research on reoffending can be found here and here). What does work is education, respectful treatment and support throughout the sentence. The question is whom would you want to have as neighbours – ex-offenders that underwent psychological treatment, found a job based on their education in prison and managed to turn their life around – or someone who has been tortured in prison and was straight released from there?
Lastly, many people who have not committed a crime are in a place of deprivation of liberty. Children in care and elderly people with dementia are just two examples, but they show the vulnerability of people who may be subject to ill-treatment. Preventive monitoring is not only about looking after prisoners. Largely, NPMs monitor the living conditions of individuals who have probably never come into contact with the criminal justice system.
2. Examples of detention conditions in contemporary Europe
To respond to the second challenge, a few examples follow to illustrate current detention conditions in some European states. While these are not necessarily the average “experience” in prison, they outline some of the challenges around deprivation of liberty and give an insight into the necessity of preventive monitoring even in advances liberal democracies.
As the name suggests, OPCAT focuses on torture and other cruel, inhuman or degrading treatment of suffering. This phrase is broad enough to allow the inclusion of a variety of acts. While people may initially think of the scenario pictured in movies (a suspect being tied to a chair and subjected to various pain-inducing techniques to elicit information), torture and ill-treatment include more than that. Examples are:
- France: The degree of overcrowding and material conditions in remand prisons (rats, humidity, lack of beds) could amount to inhuman or degrading treatment.
- Greece: Foreign nationals deprived of their liberty by the police are at risk of being ill-treated (e.g. punches and baton blows).
- UK: Long-term segregation of individuals in psychiatric hospitals amounts to inhuman and degrading treatment (isolation “for years on end with minimal human contact, and often the contact offered was not face-to-face and meaningful but via the hatch in the door to the patient’s room”).
Why is independence important?
The examples above give an insight into current living conditions of people deprived of their liberty in Europe. While these conditions can be improved or prevented by NPMs, it is important to note that not just any oversight will have the desired effect. To be effective, NPMs have to be independent from other stakeholders – most importantly from the government. This includes the power to enter any facility, view any document, and speak to any individual. It should also mean that the NPM can decide freely how to spend its budget, what priorities to set and how it disseminates its findings. Thus, independence protects the NPM from undue influence and ensures that it can work effectively to uncover the truth. Independence also protects people deprived of their liberty and ensures that civil society and the general public are informed, thereby preventing censorship around torture and ill-treatment within the country.
The importance of independent oversight
Oversight is important, because it ensures the rights of every individual, regardless of their demographics and life circumstances. It is also important, because even detention in Western European countries usually does not mean entering a “holiday camp”. Lastly, States argue sometimes that independent oversight is important but not necessary in their country, because their detention facilities are superior to most others (a view of many/numerous Western liberal countries). To these, I can only say: if you are doing everything right, then independent oversight should not be a problem – it should be a given.
Marie Steinbrecher is a PhD candidate in the School of Law at Royal Holloway, University of London. Her PhD is an exploratory study of NPM independence with case studies of different European countries.