Professor Julia Sloth-Nielsen

he Civil Society Prison Reform Initiative, a newly formed collaborative project between NICRO and the Community Law Centre, hosted a successful seminar in Cape Town on 18 September to introduce the above Optional Protocol to a variety of stakeholders from various sectors. The principal Convention against Torture was ratified by South Africa in 1998, and the country has, at the time of writing, not yet signed the Optional Protocol, but is widely expected to be one of the first African states to do so.

The Optional Protocol was adopted in 2002 by the UN General Assembly, and opened for signature in February 2003. To date, 20 countries have signed the Optional Protocol, including Senegal, and there have been two ratifications thereof. South Africa voted for adoption of the Protocol last year, along with all the SADC countries. A wave of fresh signatories was expected at the UN Session, which commenced in late September. As explained by Debra Long, keynote speaker from the Geneva-based Association for the Prevention of Torture, in her address to the gathering, the Optional Protocol was inspired by the European Convention against Torture, which set in place a visiting system similar to the one envisaged in the Optional Protocol, and which has been successfully operating in Europe since 1989.

The seminar commenced with an overview of the content of this exciting new treaty given by Prof Lovell Fernandez, Deputy Dean of the Faculty of Law of the University of the Western Cape. Noting that the Optional Protocol would only be available for ratification in countries which had also ratified the main Torture Convention, he pointed out that the Optional Protocol had been added to the original Convention (UNCAT) to help state parties to implement their existing obligations to prevent torture. It aims "to establish a system of regular visits undertaken by independent 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 1). "It is proactive rather than reactive, prophylactic rather than remedial", indicating a shift in UN philosophy towards preventive practices.

The Optional Protocol provides for a two-pronged approach to prevent torture: First, it establishes a new international entity, the international visiting mechanism (IVM), which is a sub-committee of the Committee against Torture (CAT), established under the principal Torture Convention to report on state compliance. Second, it obliges each state party to establish one or more international visiting mechanisms (IYMs) to visit places of detention within the state and to enter into a cooperative dialogue with the authorities in order to help them ensure that torture does not take place.

The role of the International Visiting Mechanism (IVM)
The wording of the Protocol requires all state parties to give the international entity unrestricted access to all places of detention, including information on where they are holding persons deprived of their liberty and information regarding where they are detained, the conditions under which they are detained, and how they are treated (article l4(1)(a) and (b). The state concerned must grant the international visiting body unlimited access to such places and an opportunity for the IVM delegation to interview detainees privately (or with a translator), without witnesses being present. The IVM may at liberty choose the places it wants to visit and the persons it wants to interview. The IYM must communicate its observations and recommendations confidentially to the state party and, if relevant, to the national preventive mechanism. If requested by the state party, the IVM must publish its report, together with any comments by the state concerned. Only if the state party refuses to co-operate with the IVM or to act on its recommendations may the IVM make a public statement without the consent of the state party. Securing the cooperation of the state is the core aim of the OPTEC. Instead of upstaging and embarrassing the state, it is nudged and induced confidentially into taking measures to prevent torture, and other forms of cruel, inhuman and degrading treatment or punishment.

The role of National Preventive Mechanisms (NPMs)
The Optional Protocol requires that one or more NPMs be established or designated in respect of all persons deprived of their liberty, but it does not prescribe any particular form that the NPM must take. Such mechanisms already exist in various states and may include bodies such as human rights commissions, ombudsmen, parliamentary commissions, laypeople’s schemes, non-governmental organisations, judicial prison inspectorates and so forth. States must make sure that the NPMs are functionally independent entities, so an entirely government-led monitoring body or inspectorate would not fulfil the mandate of the Protocol.

States that ratify the Optional Protocol must grant the NPM access to all places of detention and must enable it to have interviews, without witnesses, with the persons who are deprived of their liberty, either personally or with a translator. NPMs may visit places of detention regularly and may also choose the places they want to visit and the persons they want to interview. The state party and NPM must then enter into a dialogue for possible implementation of the recommendations emanating from visits (article 22) and state parties are also required to publish and distribute the annual reports of the NPMs (article 23).

What forms of torture and other cruel, inhuman and degrading treatment or punishment might be addressed?
The European Committee, which was set up to implement the 1989 European Convention, has focused not merely on ‘traditional’ or conventional’ forms of torture. It has also looked far more broadly at detention conditions and the cumulative effects of overcrowding, inadequate sanitation facilities, heating, lighting, sleeping arrangements, food, recreation and contact with the outside world. Its reports have been useful in contributing to the jurisprudence of the European Court on Human Rights concerning the meaning of cruel, inhuman and degrading treatment. For instance, in one case it was found that the failure by the authorities to improve poor and inappropriate conditions of detention constituted "a lack of respect" and was therefore in violation of the European Convention on Human Rights.

What are ‘places of detention’?
The European Committee, which functions under the 1 989 European Convention, visits places of detention of all types "where persons are deprived of their liberty by a public authority". These are typically police stations, prisons and juvenile detention centres, military detention facilities, psychiatric hospitals, holding centres for asylum seekers or for immigration detainees (for example, airport holding centres). The aim of the visits is to see how people deprived of their liberty are treated and to recommend improvements where necessary. Other institutions that may warrant visits are homes for children, where they are removed under an order of court (the children’s court, for example). Secure-care facilities would definitely be included in the South African context, as would reform schools and possibly schools of industry. Even privatised institutions would be subject to scrutiny as long as persons kept there were sent by a public authority.

The relevance of such an overarching monitoring and visiting body (or bodies) for setting of standards in institutions linked to the child justice system cannot be overemphasised. In the past, initiatives such as the visits of the Interministerial Committee on Young People at Risk, Project Go and inspections by members of the Intersectoral Committee on Child Justice (coordinated by the UN office for Child Justice) have contributed to various short-term improvements, but these initiatives have not been sustained. The Optional Protocol provides the impetus for a more permanent structure, with the mandate to conduct scheduled and unscheduled visits on a regular basis, and to contribute towards raising minimum norms and standards in the child justice sector. This vision is entirely in line with the proposals concerning monitoring of child justice that have formed part and parcel of the law reform process that is currently under way.

The seminar held by CSPRI to introduce the Optional Protocol in South Africa attracted various stakeholders concerned with persons deprived of their liberty by a public authority. The children’s sector, prison staff and members of the Judicial Inspectorate, delegates with knowledge of monitoring of conditions of detention in police cells, and persons from psychiatric and substance rehabilitation centres were among those represented. From the lively debates which followed the introductory sessions, it emerged that in some sectors (notably prisons) the building blocks to implement the Optional Protocol’s ideals already exist, but in the remainder much thought still needs to go into how best to set up and co-ordinate national preventive visiting mechanisms.