Inspection et monitoring

Analysis

Control mechanisms, whether they are internal inspections or monitoring by external bodies, are meant to act in complementarity.   Independent and effective external monitoring spearheads the oversight system and adequately fulfils the requirement of transparency.  External monitoring should also enable for oversight of the functioning of the internal inspections service. In order to carry out their mission all oversight bodies should have the independence, capacity and resources necessary to execute their mandate.

It is important that the conditions under which inspections are carried out respect certain minimum requirements regardless of the types of visits:

  • The possibility to conduct unexpected visits at any time and at any place of detention under the responsibility of the Ministry in charge.  Once they arrive at the place of detention, inspectors should have access to the entire premises.
  • The possibilities for inspectors to interview anyone of their choosing in private, whether it is staff or detainees.  These interviews should take place as privately as possible and in a suitable place.  These interviews should never be mandatory, especially for detainees.
  • Access to records, including prison registers and disciplinary records.
  • The possibility to follow-up on visits whether through recommendations or binding measures.
INTERNAL INSPECTIONS

Internal inspections are characterised by their dependence upon the authorities they are meant to supervise. Therefore, this system does not provide for real independence as regards the authorities even if the inspection services must be endowed with the autonomy necessary to fulfil their mission.

These inspections are generally conducted by specialized personnel from central administration.  Certain types of inspections resemble a form of auditing and are focused on financial management but also on security, personnel training or issues of discrimination.  The inspections generally tend to centre on following administrative procedures and the harmonisation of practices based on standards developed by central administration. In order to have pluridisciplinary teams, members of such inspectorates should include men and women as well as minority groups’ representatives.

Internal inspections vary noticeably from one situation to another but they can be classified into four categories:

1) Routine checks characterised by short, scheduled visits to establishments.
2) Longer visits with a fortified team which aim to monitor general detention conditions and the establishment’s proper functioning. This type of inspection can result from problems that have been brought to the administration’s attention.
3) Inspections following claims made to the administration concerning a dysfunction or abuse. This type of inspection can lead to disciplinary procedures.
4) Inspections requested by an authority in order to conduct an expert assessment on a particular issue.

In many contexts inspections can frequently be conducted by other services, not linked to the ministry in charge or the central administration.  Inspections are also sometimes conducted by services from other ministries such as education, work, health or social affairs.

EXTERNAL MONITORING

External monitoring is characterised by the independence vis-a-vis the authorities in charge of the places of detention.  This independence distinguishes it fundamentally from internal inspection services.  External monitoring can take many forms and is characterised by multiple mandates and approaches: certain participants aim to improve the treatment of people, detention conditions and how places they visit are run.  Others focus on monitoring individual cases, favour a humanitarian approach or provide specific services to detainees.

women
foreigners
disabilities
minorities
children

The bodies in charge of independent monitoring should ensure that the visiting teams include a gender balance and representatives of minority groups.

Visits of the judiciary

In certain countries judges and prosecutors have a legal mandate to visit places of detention.  The form that these judicial visits take greatly depends upon the context of national jurisdictions and legal systems.

The two main types of judicial visits are:

  • The judge overseeing the execution of sentences is the authority responsible for monitoring convicted persons. The purpose of these visits is to guarantee individualisation of the sentence and/or to offer a possibility of appeal of the authorities’ decisions.  According to jurisdictions, the judge has broad powers that range from authorizing release to reducing sentences.  When these visits take place regularly, the judge can represent an efficient safeguard against impunity and ill treatment.
  • The Prosecutor may also visit prisons.  In certain contexts the Public Prosecutors Office receives a specific mandate to conduct general monitoring of prison conditions and treatment of detainees.
     
Monitoring by independent national institutions

Numerous countries have instituted or designated an institution in charge of monitoring places of detention. In order to be operational, these institutions must be absolutely independent and should have a sufficient budget to carry out their activities. 

There are two types of national independent institutions:

  • National Preventive Mechanisms of Torture (NPM), established by ratification of the Optional protocol of the United Nations Convention Against Torture (OPCAT), which came into force in 2006.  Operational NPMs play a key role in the prevention of torture and ill treatment (see: www.apt.ch/en/opcat-database/).
  • National Human Rights Institutions (NHRI).  These institutions have a broad mandate to protect and promote human rights.  Some have set up a special unit to monitor places of detention.  Numerous states party to the OPCAT have designated their NHRI as their NPM.
Monitoring by regional or international bodies

There are different monitoring bodies at international and regional levels. Some groups have a mandate of preventive monitoring focusing on conditions and treatment of detainees as well as systemic problems.  Others have a different mandate that nevertheless contributes to preventing abuse in detention. 

The main international and regional monitoring bodies that conduct monitoring visits to places of detention are:

  • The United Nations Subcommittee on the Prevention of Torture (SPT) is the international component of the preventive visits system established by the OPCAT.  The SPT has a dual mandate: to supervise detention conditions and treatment of people deprived of liberty through country visits and to provide advice regarding implementation of the OPCAT, in particular supporting the establishment and operationalization of an NPM.  With 25 independent experts, the SPT is the largest treaty body of the United Nations.
  • The International Committee of the Red Cross (ICRC) bases its work on the 1949 Geneva Convention,its additional protocols, and the Statutes and Resolutions resulting from International Conferences of the Red Cross and the Red Crescent. Its mandate includes visits to places of detention in its conventional framework or on the basis of special agreements with governments.
Parliamentary committees

Local or national parliamentary commissions exist in some countries. Their mandate is generally to inquire be about conditions of detention, treatment of detainees and/or the general running of places of detention.

The make-up of the commissions should reflect that of the parliament and guarantee a non-partisan approach.  Such commissions have the advantage of being able to give legislators direct supervisory powers and to bring legislative authorities to the prison itself.  Certain representatives sometimes also have the possibility of visiting places of detention on an individual basis.

Monitoring by civil society organisations

In numerous contexts civil society organizations, including NGOs, visit places of detention whether in the framework of a monitoring program established by a memorandum of understanding with authorities or in order to furnish specific services of a legal, medical or other nature.  Even if civil society organizations do not generally have the same unhindered access as bodies whose mandate is enshrined in law or in an international treaty, they act as an essential intermediary between the prison world and the rest of the society.

Complementarity of existing systems

In some contexts, the opacity of detention facilities is almost total, while in others there are many shareholders visiting places of detention. In general, monitoring bodies have multiplied in the last decade, but this multiplication of oversight is positive only if the various monitoring bodies communicate with each other and coordinate their actions. External monitoring should complement internal inspections. In some contexts, internal service inspectors are in charge of follow-up on recommendations issued by an independent monitoring body. By doing this, they can verify the implementation of commitments made to the independent monitoring body.

women
foreigners
disabilities
minorities
children

Both internal inspection services as well as independent monitoring   bodies should pay particular attention to people or groups that are especially vulnerable in detention.  Independent monitoring bodies are sometimes the only ones capable of identifying abuse or discriminatory practices towards certain groups and they should be able to require the authorities to put an end to it.  They should also take care that the attention given to detainees during private interviews does not lead to retaliation once the visit is over.