The objective of the present 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.
Deprivation of liberty, which is characterised by an imbalance of power between representatives of the authority and detainees, results in risks of all types of abuse, including ill-treatment and torture. These risks are further heightened because of the closed and isolated nature of places of detention. Internal and external oversight is necessary in order to reduce the opacity typical of places of deprivation of liberty as well as to guarantee respect for prisoners’ rights and to force authorities to be accountable.
Forms of oversight can vary from one situation to another. There are two types of monitoring:
1) Internal inspections, conducted by departments managed by the administrative authority or the ministry in charge of places of detention. These departments should have the material means and sufficient autonomy to successfully carry out their inspections.
2) External monitoring, conducted by various entities with very different mandates: preventive visits mechanism set up under treaties (the Optional Protocol to the United Nations Convention against Torture or regional mechanisms), inspections by the judiciary, visits by MPs or parliamentary committees, civil society organizations, the International Committee of the Red Cross, monitoring commissions etc.
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 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 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.
The bodies in charge of independent monitoring should ensure that the visiting teams include a gender balance and representatives of minority groups.
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.
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.
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 European Committee of the Council of Europe for the Prevention of Torture (CPT) was established by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment, which entered into force in 1987. The 47 Member States of the Council of Europe ratified the Convention and the CPT regularly visits them.
- The Inter-American Commission on Human Rights, founded in 1959, established a Rapporteur on the rights of persons deprived of liberty who has the power to visit places of detention of the member states of the Organization of American States.
- Certain Special Rapporteurs and UN working groups (such as the Special Rapporteur on Torture and the Working Group on Arbitrary Detention) are also able to visit places of deprivation of liberty and can privately interview detainees.
- 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.
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.
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.
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.
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.
States Parties shall, in accordance with their legal and administrative systems, maintain, strengthen, designate or establish within the State Party, a framework, including one or more independent mechanisms, as appropriate, to promote, protect and monitor implementation of the present Convention. When designating or establishing such a mechanism, States Parties shall take into account the principles relating to the status and functioning of national institutions for protection and promotion of human rights.
Civil society, in particular persons with disabilities and their representative organizations, shall be involved and participate fully in the monitoring process.
1. There shall be a twofold system for regular inspections of prisons and penal services:
(a) Internal or administrative inspections conducted by the central prison administration;
(b) External inspections conducted by a body independent of the prison administration, which may include competent international or regional bodies.
2. In both cases, the objective of the inspections shall be to ensure that prisons are managed in accordance with existing laws, regulations, policies and procedures, with a view to bringing about the objectives of penal and corrections services, and that the rights of prisoners are protected.
1. Inspectors shall have the authority:
(a) To access all information on the numbers of prisoners and places and locations of detention, as well as all information relevant to the treatment of prisoners, including their records and conditions of detention;
(b) To freely choose which prisons to visit, including by making unannounced visits at their own initiative, and which prisoners to interview;
(c) To conduct private and fully confidential interviews with prisoners and prison staff in the course of their visits;
(d) To make recommendations to the prison administration and other competent authorities.
External inspection teams shall be composed of qualified and experienced inspectors appointed by a competent authority and shall encompass health-care professionals. Due regard shall be given to balanced gender representation.
1. Every inspection shall be followed by a written report to be submitted to the competent authority. Due consideration shall be given to making the reports of external inspections publicly available, excluding any personal data on prisoners unless they have given their explicit consent.
2. The prison administration or other competent authorities, as appropriate, shall indicate, within a reasonable time, whether they will implement the recommendations resulting from the external inspection.
In order to supervise the strict observance of relevant laws and regulations, places of detention shall be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment.
A detained or imprisoned person shall have the right to communicate freely and in full confidentiality with the persons who visit the places of detention or imprisonment in accordance with paragraph 1 of the present principle, subject to reasonable conditions to ensure security and good order in such places.
Qualified inspectors or an equivalent duly constituted authority not belonging to the administration of the facility should be empowered to conduct inspections on a regular basis and to undertake unannounced inspections on their own initiative, and should enjoy full guarantees of independence in the exercise of this function. Inspectors should have unrestricted access to all persons employed by or working in any facility where juveniles are or may be deprived of their liberty, to all juveniles and to all records of such facilities.
Qualified medical officers attached to the inspecting authority or the public health service should participate in the inspections, evaluating compliance with the rules concerning the physical environment, hygiene, accommodation, food, exercise and medical services, as well as any other aspect or conditions of institutional life that affect the physical and mental health of juveniles. Every juvenile should have the right to talk in confidence to any inspecting officer.
After completing the inspection, the inspector should be required to submit a report on the findings. The report should include an evaluation of the compliance of the detention facilities with the present rules and relevant provisions of national law, and recommendations regarding any steps considered necessary to ensure compliance with them. Any facts discovered by an inspector that appear to indicate that a violation of legal provisions concerning the rights of juveniles or the operation of a juvenile detention facility has occurred should be communicated to the competent authorities for investigation and prosecution.
Certain basic guarantees apply to all persons deprived of their liberty. (…)Such guarantees include, inter alia, (…) the need to establish impartial mechanisms for inspecting and visiting places of detention and confinement(…).
Independent authorities and expert bodies should be mandated to supervise and monitor pretrial and prison facilities, with expertise on discrimination and the situation of minority prisoners and adequate representation of minorities within the body’s membership.
The Special Rapporteur calls on States to consider progressively abolishing the administrative detention of migrants. In the meantime, Governments should take measures to ensure respect for the human rights of migrants in the context of detention, including by:
Ensuring that migrants under administrative detention are placed in a public establishment specifically intended for that purpose or, when this is not possible, in premises other than those intended for persons imprisoned under criminal law. The use of privately run detention centres should be avoided. Representatives of, inter alia, national human rights institutions, OHCHR, UNHCR, ICRC and NGOs should be allowed access to all places of detention. All migrant detention facilities – whatever their form – should be subject to a common set of standards, policies and practices and should be monitored by an independent central authority that is dedicated to ensuring compliance with the common set of standards, policies and practices
Guarantee access by the competent and legally authorized authorities and institutions to the places where persons are deprived of liberty, if necessary with prior authorization from a judicial authority;
Women prisoners who report abuse shall be provided immediate protection, support and counselling, and their claims shall be investigated by competent and independent authorities, with full respect for the principle of confidentiality. Protection measures shall take into account specifically the risks of retaliation.
Women prisoners who have been subjected to sexual abuse, and especially those who have become pregnant as a result, shall receive appropriate medical advice and counselling and shall be provided with the requisite physical and mental health care, support and legal aid.
In order to monitor the conditions of detention and treatment of women prisoners, inspectorates, visiting or monitoring boards or supervisory bodies shall include women members.
Regular and independent monitoring of places where children are deprived of their liberty is a key factor in preventing torture and other forms of ill-treatment. Monitoring should be conducted by an independent body, such as a visiting committee, a judge, the children’s ombudsman or the national preventive mechanisms with authority to receive and act on complaints and to assess whether establishments are operating in accordance with the requirements of national and international standards. Independent monitoring mechanisms should draw on professional knowledge in a number of fields, including social work, children’s rights, child psychology and psychiatry, in order to address the multiple vulnerabilities of children deprived of their liberty and to understand the specific normative framework and overall system of child protection.
55. (...) National Human Rights Institutions and other independent monitoring bodies should be encouraged to participate in monitoring the treatment and conditions of children living in prison with their mothers. It is also important to underscore the point that law, policy and practice should emphasize that no child should remain in prison following the release, execution or death of their incarcerated parents/mothers.
Adequate and effective complaint and oversight mechanisms are critical sources of protection for at-risk groups that experience abuses in detention. All too often proper safeguards are absent or lacking in independence and impartiality, while fear of reprisals and the stigma associated with reporting sexual violence and other humiliating practices discourage women, girls, and lesbian, gay, bisexual and transgender persons from reporting. In many cases, the vulnerability and isolation of women and girls is compounded by limited access to legal representation, inability to pay fees or bail as a result of poverty, dependence on male relatives for financial support and fewer family visits.
All places of detention must be subject to unannounced visits by independent bodies established in conformity with the Optional Protocol to the Convention against Torture. The inclusion of women, lesbian, gay, bisexual and transgender persons and other minority representation on inspection bodies at all levels would help facilitate the reporting of gender-based violence and discrimination and identify cases of torture and ill-treatment.
With regard to women, girls, and lesbian, gay, bisexual and transgender persons in detention, the Special Rapporteur calls on all States to:
[...] (x) Monitor and supervise all places of detention in a gender-sensitive manner and ensure that allegations of abuse are effectively investigated and perpetrators brought to justice; and ensure the availability of adequate, speedy and confidential complaint mechanisms in all places of detention;
(y) Ensure that all places of detention are subjected to effective oversight and inspection and unannounced visits by independent bodies established in conformity with the Optional Protocol to the Convention against Torture, as well as by civil society monitors; and ensure the inclusion of women and lesbian, gay, bisexual and transgender persons and other minority representation on monitoring bodies; [...]
19. The Committee has stressed the necessity to implement monitoring and review mechanisms in relation to persons with disabilities deprived of their liberty. Monitoring existing institutions and review of detentions do not entail the acceptance of the practice of forced institutionalization. Article 16(3) of the Convention explicitly requires monitoring of all facilities and programmes that serve persons with disabilities in order to prevent all forms of exploitation, violence and abuse, and article 33 requires that States parties establish a national independent monitoring mechanism and ensure civil society participation in monitoring (paras. 2 and 3). Review of detentions must have the purpose of challenging the arbitrary detention and obtain immediate release, in no case it should allow for the extension of the arbitrary detention.
All prisons shall be subject to regular government inspection and independent monitoring.
Prisons shall be inspected regularly by a governmental agency in order to assess whether they are administered in accordance with the requirements of national and international law, and the provisions of these rules.
The conditions of detention and the treatment of prisoners shall be monitored by an independent body or bodies whose findings shall be made public.
Such independent monitoring body or bodies shall be encouraged to co-operate with those international agencies that are legally entitled to visit prisons.
Competent, independent, and impartial judges and tribunals shall be in charge of the periodic control of legality of acts of the public administration that affect, or could affect the rights, guarantees, or benefits to which persons deprived of liberty are entitled, as well as the periodic control of conditions of deprivation of liberty and supervision of the execution of, or compliance with, punishments.
Member States of the Organization of American States shall ensure the necessary resources to permit the establishment and effectiveness of judicial bodies of control and supervision of punishments, and shall provide the necessary resources for them to function adequately
In accordance with national legislation and international law, regular visits and inspections of places of deprivation of liberty shall be conducted by national and international institutions and organizations, in order to ascertain, at any time and under any circumstance, the conditions of deprivation of liberty and the respect for human rights.
As a minimum, such inspections shall be carried out with full access to places of deprivation of liberty and their installations, access to the information and documentation relating to the institution and the persons deprived of liberty therein; and the possibility of conducting private and confidential interviews with persons deprived of liberty and personnel.
Effective grievance and inspection procedures are fundamental safeguards against ill-treatment in prisons. Prisoners should have avenues of complaint open to them both within and outside the context of the prison system, including the possibility to have confidential access to an appropriate authority. The CPT attaches particular importance to regular visits to each prison establishment by an independent body (eg. a Board of visitors or supervisory judge) possessing powers to hear (and if necessary take action upon) complaints from prisoners and to inspect the establishment's premises. Such bodies can inter alia play an important role in bridging differences that arise between prison management and a given prisoner or prisoners in general.
Ensure and support the independence and impartiality of the judiciary including by ensuring that there is no interference in the judiciary and judicial proceedings, guided by the UN Basic Principles on the Independence of the Judiciary
Encourage professional legal and medical bodies to concern themselves with issues of the prohibition and prevention of torture, cruel, inhuman and degrading treatment or punishment.
The CPT also attaches particular importance to regular visits to all detention centres for juveniles by an independent body, such as a visiting committee, a judge, the children's Ombudsman or the National Preventive Mechanism (established under the Optional Protocol to the United Nations Convention against Torture - OPCAT) with authority to receive and, if necessary, take action on juveniles' complaints or complaints brought by their parents or legal representatives, to inspect the accommodation and facilities and to assess whether these establishments are operating in accordance with the requirements of national law and relevant international standards. Members of the inspection body should be proactive and enter into direct contact with juveniles, including by interviewing inmates in private.
b. Access to the register shall be provided to the arrested or detained person, his or her lawyer or other legal service provider, family members, and any other authority or organisation with a mandate to visit places of detention or to provide oversight on the treatment of persons deprived of their liberty.
States shall establish, and make known, oversight mechanisms for authorities responsible for arrest and detention. These mechanisms shall be provided with the necessary legal mandate, independence, resources and safeguards to ensure transparency and reporting, to ensure the thorough, prompt, impartial and fair exercise of their mandate.
42. Monitoring mechanisms
a. States shall ensure access to detainees and places of detention for independent monitoring bodies or other neutral independent humanitarian organisations authorised to visit them.
b. A detained person shall have the right to communicate freely and in full confidentiality with the persons who visit the places of detention or imprisonment in accordance with the above principle, subject to reasonable conditions to ensure security and good order.
c. Access to places of detention shall also be provided to lawyers and other legal service providers, and other authorities such as judicial authorities and National Human Rights Institutions, subject to reasonable conditions to ensure security and good order.
J) Provide for effective oversight of detention facilities, both with regard to public and private custodial care, with a view to ensuring the safety and security of all persons, and addressing the specific vulnerabilities associated with sexual orientation, gender identity, gender expression and sex characteristics."
Questions for monitors
Is there an internal inspection service? If this is the case, what is its mandate and what kinds of visits does it carry out?
Do the internal inspection services act independently as regards the ministry in charge and are its observations and recommendations implemented?
Can the internal services inspectors have private interviews with inmates and personnel? Do they have access to the entire premises and all facilities?
Is there a male/female balance in the internal inspection services and are representatives of minority groups included?
Do the internal services inspectors pay particular attention to groups and people in vulnerable situations?
Do judges and prosecutors have a legal mandate to visit prisons? If so, how are visits conducted in practice?
Is there a system of visits by parliamentary committees? If this is the case, what is the mandate of these commissions and how do they work in practice?
Do independent monitoring systems give particular attention to people in situations of vulnerability?
Are independent monitoring bodies composed of a balance of male/female members and are minority groups represented?
What kinds of links exist between the various monitoring bodies and the inspection services? To what extent is the follow-up of recommendations shared among inspection and monitoring bodies?
Have the various monitoring and inspection bodies put strategies in place to reduce the risk of reprisals towards inmates or personnel?