The OPCAT Tasks: General Principles
1. Background and objective
On 19 May 2004 the Folketing (the Danish Parliament) agreed to ratify the UN’s Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), cf. motion for parliamentary resolution No. B 129 of 19 February 2004.
The OPCAT direct the member States to establish a system of regular visits undertaken by independent bodies to places where people are deprived of their liberty, in order to prevent torture, etc. Each of the member States are obligated to establish one or more national authorities for the prevention of torture, etc.: The National Preventive Mechanism – NPM.
In the autumn of 2007 the Danish government appointed the Parliamentary Ombudsman (PO) the Danish NPM. When authorising the appropriation for the PO to undertake the task, the Folketing presupposed that the Rehabilitation and Research Centre for Torture Victims (RCT) and the Danish Institute for Human Rights (DIHR) have the ability to provide the NPM with specialist medical and human rights experts.
Below, the legal framework for the NPM and the cooperation between the PO, the RCT and the DIHR will be outlined.
2. The legal framework for the establishment of the NPM
Part 4 of the OPCAT Protocol contains seven articles on the NPM, including a description of the conditions which the state shall implement in order for the NPM to carry out its tasks.
Among other things, the States shall guarantee the functional independence of the NPM and take the necessary steps to ensure that the NPM has the required capabilities and professional knowledge (Article 18, paragraph 1 and 2). The PO’s cooperation with the RCT and the DIHR is stipulated precisely in order to ensure that the NPM may carry out its tasks with the required medical and human rights expertise. Conse-quently, when authorising the appropriation for the PO’s function as NPM, the Folketing stipulated that the RCT and the DIHR likewise be granted the financial resources to participate in the NPM’s task.
The NPM’s tasks are described in detail in Article 19. The NPM’s main task consists of visiting places where persons are deprived of their liberty, with a view to strengthening the protection against and prevention of torture and other degrading and inhuman treatment. In addition, the NPM shall submit recommendations and observations concerning existing or proposed legislation.
Both the inspection activity and the other part of the NPM’s work are presumed to have a particular preven-tive perspective. This implies first and foremost a special duty to pay attention to general conditions which may in the long term indicate a risk of torture or other degrading or inhuman treatment. The Chairman of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), Ms. Silvia Casale, has made the following statement with regard to the preventive perspective:
“The preventive perspective is forward looking. It does not dwell on past mistakes, except for the purpose of identifying where improvement needs to occur. In order to bring state officials to an acceptance of the problems in their systems, the SPT will deliver the results of its care-ful empirical fact-finding, with information triangulated from different sources. Producing a clear picture of shortcomings, gaps or negative practices should not be undertaken or received as an exercise in blaming; nor is it intended to assist the prosecution in pursuing individual cases. The preventive focus is on generic weaknesses and systemic faults. The object is to reach a common understanding of current problems and of the need for change, in order to prevent recurring abuse.”
(The Optional Protocol to the UNCAT: Preventive Mechanisms and Standards, Conference Proceedings, University of Bristol 2007)
In order to enable the NPM to fulfil its mandate, the State shall i.a. undertake to grant it access to all places of detention, including private institutions, and grant access to all information thereof, cf. Article 20. The Danish Ombudsman Act has been amended accordingly in order to grant said access.
Confidential information collected by the NPM shall be privileged and must not be published without the express consent of the person concerned (Article 21, paragraph 2).
The competent authorities shall examine the NPM’s recommendations and enter into a dialogue with the NPM on possible implementation measures (Article 22).
The State is obligated to publish and disseminate the annual reports of the NPM (Article 23).
As stated, the PO has been appointed as the Danish NPM. Greenland and the Faroe Islands have also rati-fied the OPCAT. The PO is competent vis-à-vis the institutions under the Community of the Danish Realm in Greenland and on the Faroe Islands. The Danish Ministry of Foreign Affairs has not yet decided who should be appointed NPM for those institutions which belong under the respectively Greenland and Faroese home rule, including private institutions, but it will probably be the Ombudspersons for Greenland and the Faroe Islands.
3. The PO, the RCT and the DIHR
3.1. The Parliamentary Ombudsman / NPM
The mandate of the Danish Parliamentary Ombudsman is laid down in the Ombudsman Act (act No. 473 of 12 June 1996).
The Ombudsman is elected by the Folketing after every general election and the Folketing may dismiss him if he ceases to enjoy its confidence (Section 1 and 3). In the discharge of his functions the Ombudsman is independent of the Folketing (Section 10). The Ombudsman engages and dismisses his own staff (Section 26). The Ombudsman and his staff must observe confidentiality (Section 28).
The jurisdiction of the Ombudsman extends to all parts of the public administration (Section 7).In June 2009 the Ombudsman Act was amended by Folketinget in order to include private companies, etc. in the Om-budsman’s jurisdiction for the purpose of fulfilling his NPM function (act No. 502 of 12 June 2009).
Authorities under the Ombudsman’s jurisdiction are obligated to provide the Ombudsman with all the infor-mation and all the documents which the Ombudsman may demand. The Ombudsman may demand written statements from the authorities under his jurisdiction and may subpoena persons to give evidence in court on any matter of importance to his investigations. The Ombudsman may inspect any place of employment and shall have access to all premises (Section 19). In the 2009-amendment of the Ombudsman Act, a provi-sion has been included by which the NPM may also demand information from private companies and in-spect private premises.
When the Ombudsman carries out his functions as NPM, he does so with reference to the basis of assess-ment which may be gathered from OPCAT (see item 6 and 7). The NPM is not affected by the Ombuds-man’s limitations under the Ombudsman Act (or in practical terms), for example the limitations in relation to the courts, the demand that other appeal options be fully explored, and the 1-year period of limitation.
3.2. The Rehabilitation and Research Centre for Torture Victims
The Rehabilitation and Research Centre for Torture Victims (RCT) was established in 1982 as one of the first specialised centres for treatment of torture victims. The RCT is an independent private institution which since its establishment has developed into one of the leading resource centres in the international network of hu-man rights organisations in the fight against torture. The RCT carries out rehabilitation of torture victims in Denmark and research into the causes and effects of torture, including research into conditions in prisons. In an international context the RCT carries out development undertakings in which promoting the ratification and implementation of OPCAT constitutes one of its major target areas. The RCT participates in the OPCAT contact group together with big international human rights organisations and, in addition, works directly with the UN Subcommittee for the Prevention of Torture (SPT). Furthermore, the RCT contributes to the capacity build-up of those civil society organisations which carries out independent monitoring visits to prisons and other places of detention.
3.3. The Danish Institute for Human Rights
The Danish Institute for Human Rights (DIHR) was established in 2002 by the act on establishment of the Danish Centre for International Studies and Human Rights. The DIHR replaced the Danish Centre for Human Rights which had been established through a parliamentary resolution in 1986.
The DIHR is an independent national human rights institution which monitors and counsels on human rights matters. It follows directly from the act that the institute “shall advise Parliament and the government on Denmark’s obligations in the area of human rights”. This is i.a. done through the institute’s national functions and on the basis of the human rights research that is carried out at the institute. The institute researches specifically in the conditions and rights of the inmates in Danish prisons, including e.g. the issue of solitary confinement of prisoners remanded in custody and the presence of the inmates’ children in the prison.
In addition, the institute functions as a connecting link between regional and international human rights insti-tutions.
4. The cooperation between the PO, the RCT and the DIHR
The PO has been appointed NPM but the Folketing has presupposed that the in connection with the OPCAT task the Ombudsman may call upon the special medical and human rights expertise of the RCT and the DIHR.
Formally, the RCT and the DIHR function only in an advisory capacity within the OPCAT cooperation. How-ever, the Ombudsman has stated that he will attach decisive significance to the opinion of two organisations, and that the reports will always reflect any divergent views.
The cooperation between the PO, the RCT and the DIHR is implemented in the OPCAT council and the OPCAT work group, respectively. Each of the three institutions may independently decide to carry out teaching and course activities about OPCAT matters or any other ancillary activities.
4.1. The OPCAT council – the general cooperation
The management of the three institutions meet at regular intervals – in the beginning probably every quarter and later on every six months – to discuss and prepare the overall guidelines for the OPCAT activities, the collected annual debriefings from the NPM and joint press releases. This part of the cooperation is called the OPCAT council.
The council will first of all decide on the design of an inspection manual and a structure for the reports to the relevant authorities concerning the individual inspections.
4.2. The OPCAT work group – the day-to-day cooperation
Each of the three institutions will appoint regular contact persons/staff members who will participate in the continuous OPCAT tasks – both the inspection activity itself as well as the drafting of reports and statements concerning new legislation. The staff of the PO acts as secretariat for the working group’s tasks and has the overall responsibility for organising the activities.
4.2.1. The activities of the OPCAT working group in connection with inspections
Staff members from the PO and a physician from the RCT always participate in an inspection. The DIHR will participate in the start-up stage of a number of inspections but will eventually only be involved on an ad hoc basis.
The number of people participating in the inspections must be limited, preferably not exceeding four peo-ple. The RCT members of the inspection team will participate as employees of the Ombudsman. DIHR employees, who are already bound by confidentiality as civil servants, will participate as the Ombudsman’s guests at the various inspections.
In those instances when the DIHR does not participate in an inspection, the report is sent in draft to the DIHR’s representative in the working group for comment, either written or verbal, perhaps at a working group meeting, before the NPM submits the report in its final form. Before the NPM submits the report, the working group has discussed and decided which follow-up activities, including dialogue, which may need to be implemented on the part of the NPM after the report has been submitted, and who has to participate in these activities. The DIHR’s experience of dialogue and preventive measures may be included even though the DIHR has not participated in the inspection.
4.2.2. The OPCAT working group’s activities in relation to observations on existing law or proposals for new provisions
The NPM shall submit proposals and observations concerning existing or draft legislation cf. Article 19 (c).
Today, the DIHR already goes through proposals for new legislation. The DIHR will brief the working group on issues relevant to the NPM and will in agreement with the working group make draft statements for the NPM which will be presented and discussed in the working group and perhaps the OPCAT council. If it proves impossible to reach an agreement in the OPCAT council on the contents of a statement, the DIHR and the RCT may of course give the statement on their own behalf.
5. Practical tasks in connection with the OPCAT inspections, including coordination with the Om-budsman’s general inspections
5.1. OPCAT inspections
The main objective of the NPM is to carry out visits to places where people are deprived of their liberty, in order to prevent torture, etc. These inspections are called OPCAT inspections.
An annual rate of 40 OPCAT inspections is expected. During the first year, 2009, only a smaller number of inspections will be carried out. In 2010 the number will rise, and it is expected that the full rate of 40 inspec-tions annually will be reached in 2011, corresponding to approximately 1 inspection a week during the year’s working weeks.
The special OPCAT unit under the Ombudsman’s office is in charge of planning and organising the inspec-tions.
In as far as it is possible, the working group agrees a year in advance which inspections to carry out, and when (an inspection plan). The inspection plan must be approved by the OPCAT council. The aim is that the 2010 inspection plan be agreed and approved before the end of October 2009. The 2011 inspection plan should be agreed and approved before the end of October 2010, and so on and so forth.
Should circumstances arise which demand an inspection outside the agreed plan, the OPCAT working group is contacted and it is arranged when this special inspection shall take place and who should participate in it.
Usually, the inspections will take place after prior notification to the institutions concerned. The Ombuds-man’s OPCAT unit takes care of correspondence with the institutions and obtains relevant information before the visit. The content of standard letters, information material, etc. is discussed in the working group in connection with the drafting of the manual.
Reports on each separate inspection are submitted. These reports are sent to the inspected institutions and other responsible authorities. Before the reports are submitted, the working group must discuss and agree which measures the NPM may take in connection with follow-ups and dialogue on possible implementation actions.
A collected annual report on the OPCAT activities is drafted, meaning both on the OPCAT inspections as well as on any observations on legislation and possible extracts from the PO’s general inspection activities. The annual report is submitted to the OPCAT council, including a draft for a joint press release. The annual report is published on the PO’s web page.
The OPCAT team will coordinate with the Danish Ministry of Foreign Affairs how the ministry will publish and disseminate the NPM’s annual report, cf. Article 23. This includes the question of whether the ministry will effect an English translation of the annual report and inform the UN’s Sub-committee. As a minimum, the NPM shall itself send the annual report to the parliamentary Legal Affairs Committee, the Supervisory Board in accordance with Section 71(7) of the Danish Constitutional Act, and the Foreign Affairs Committee.
5.2. Coordination with the Ombudsman’s general inspections
The Ombudsman already carries out inspections in accordance with Section 18 of the Ombudsman Act. These inspections – general inspections – are not just carried out in places where people are deprived of their liberty, and they concern a wide range of conditions of which some fall inside but a considerable num-ber fall outside those special focus areas which the NPM must monitor in accordance with OPCAT.
The general inspection activity, which is carried out by the PO’s Inspection Division, is maintained and con-tinues the usual practice. The annual number of such inspections is around 25.
The reports from the PO’s general inspections are prepared in accordance with the usual practice and sent to the parliamentary Legal Affairs Committee, the Supervisory Board in accordance with Section 71(7) of the Danish Constitutional Act, and the authorities involved.
In addition, the Ombudsman’s general Inspections Division will prepare an extract of their inspection reports in those instances where they have encountered conditions which may be characterised as torture or other cruel, degrading or inhuman treatment or punishment.
The extracts are submitted to the OPCAT working group which may decide that an OPCAT inspection should be carried out or that other kinds of investigation should be instituted with a view to giving an OPCAT opinion or report.
6. The subject of the OPCAT inspections
The inspections shall be aimed at places where people either are or may be deprived of their liberty (see item 6.1), with a view to protecting against or preventing torture and other cruel, inhuman or degrading treatment or punishment (see item 6.2).
6.1. Places where people are or may be deprived of their liberty
The supervision is aimed at the treatment of people in places where they are or may be deprived of liberty in accordance with Article 4.2 of the OPCAT protocol which defines deprivation of liberty as: “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 by order of any judicial, administrative or other authority”.
The supervision is particularly aimed at institutions such as prisons, county gaols, police stations, psychiatric hospital wards and asylum centres. Social residential institutions, private social care homes and other social institutions may, according to circumstances, be included in the supervisory activities. Inspections of such places will be effected as random checks following a concrete assessment based on external indications.
It must be supposed that the NPM may demand information on Danish authorities’ detention of persons outside Denmark and that, according to circumstances, the NPM will be allowed to visit such places of detention, cf. Article 4 and 20 of the protocol.
6.2. Torture and cruel, inhuman or degrading treatment and punishment
The inspections are aimed at prevention of torture and cruel, inhuman and degrading treatment. Attention during these visits will be aimed at actions and conditions which may fall within these categories.
Article 1 of the UN Convention against Torture defines torture as follows: “For the purposes of this Conven-tion, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimi-dating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions or wider application.”
Section 157 a (2) of the Danish Criminal Code contains the following definition of torture: “[Torture means] to inflict harm on body or health or severe physical or mental pain or suffering
1) in order to obtain information or confessions from someone,
2) to punish, intimidate or force somebody to do, suffer or abstain from something or
3) because of a person’s political beliefs, sex, race, colour, national or ethnic origin, faith or sexual orientation.”
[Unauthorised translation]
It follows from this definition that special attention must be paid to information on the detainees’ health conditions, medical treatment, medical aid provisions, use of force and violence and other physical harm. As discrimination is part of the definition of torture, the inspection team must be especially mindful of whether groups which may be particularly vulnerable to discrimination are in fact being treated or risk treatment in contravention of the prohibition on torture, etc.
OPCAT also includes the prevention of cruel, inhuman and degrading treatment. In the practice of the Euro-pean Court of Human Rights on the interpretation of the corresponding provision in Article 3 of the European Human Rights Convention, these expressions cover a great variety of conditions.
The European Court of Human Rights has defined “inhuman” treatment as “intense physical or mental suffer-ing”. The court has made special efforts to define and clarify degrading treatment, allegedly because it con-stitutes the least serious form of illegal treatment and it is important to attempt to define this illegal act as opposed to legitimate use of force.
In the assessment of whether or not a treatment can be termed “degrading” the court has focused on the treatment as a source of feelings of fear, anguish or inferiority which are aimed at humiliating and possibly breaking down the victim. Thus, in the Pretty case from 2002 the court stated:
“As regards the types of ‘treatment’ which fall within the scope of Article 3 of the Convention, the Court’s case-law refers to ‘ill-treatment’ that attains a minimum level of severity and in-volves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dig-nity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral or physical resistance, it may be characterized as degrading and also fall within the prohibition of Article 3.”
In resolution A/RES/43/173 of 9 December 1988 the UN General Assembly has established that:
“The term "cruel, inhuman or degrading treatment or punishment" should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.”
As this shows, the treatment must be of a certain severity in order to be termed degrading. The definition may e.g. include the physical conditions, the way in which those deprived of liberty is actually treated, neg-lecting the care of sick individuals, acceptance of abuse and exploitation by fellow inmates, restrictions in the contact with others and advanced psychological interrogation techniques.
Human rights supervisory bodies have stressed that the assessment of whether or not a specific treatment may be defined as torture, inhuman or degrading is individual, relative and dependent on the specific cir-cumstances. In this context it is of particular importance to consider how long the victim in question has been subjected to the treatment, the physical and mental effects of the treatment, the victim’s sex, age and health, cultural and ethnic background, etc. One person may feel a specific treatment to be extremely painful while another person may not feel like that at all. In principle, it is thus impossible to make an exhaustive list of illegal methods which will always be torture and therefore illegal.
Harsh conditions and punishment during imprisonment for i.a. the elderly or weakened individuals may thus, according to circumstances, constitute a violation of the prohibition against degrading or inhuman treatment. Information that may shed light on such conditions is consequently also included in the OPCAT inspections’ special field of interest.
The UN Committee against Torture has declared that the supervision should not only concern the conditions for those deprived of liberty but also include the legality of deciding to deprive the individual of his or her freedom and the attending case processing.
7. Basis of assessment according to OPCAT
According to Article 19 of the protocol, the NPM may “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 other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;”
These may i.a. be:
− Relevant UN conventions (“hard law”) concerning torture and inhuman treatment, here specifically the UN Convention against Torture, the UN International Covenant on Civil and Political Rights and the UN Convention on the Rights of the Child.
− Relevant UN declarations, resolutions and principles (“soft law”), here specifically “The Standard Minimum Rules for the Treatment of Prisoners”, 1997, “The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment”, 1988, “United Nations Rules for the Pro-tection of Juveniles deprived of their Liberty”, 1990, “Code of Conduct for Law Enforcement Offi-cials”, 1979, and “Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, 1982.
− Relevant practice from human rights monitoring bodies, here specifically the UN Human Rights Council and the UN Committee against Torture.
Furthermore, national rules may be included (e.g. the Danish Criminal Code) and Danish legal usage on the subject.
In addition, it will be natural to include the European Human Rights Convention and case law from the Euro-pean Human Rights Court together with the European Council’s 2006 prison rules and case law from the European Convention for the Prevention of Torture (CPT).
Moreover, a number of international human rights organizations have drawn up guidelines and manuals for prison visits. Among others, the Association for the Prevention of Torture (APT) has drawn up a detailed manual for the inspection activity, “Monitoring Places of Detention”, on the basis of the OPCAT protocol.
28 August 2009 / Hans Gammeltoft-Hansen
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Date / Danish Parliamentary Ombudsman