NPM Toolkit

Following a decision about the NPM model, a number of immediate steps may be required. These include drafting and adopting new laws or legislative change, if necessary, in order to ensure that the NPM, whether it is a new specialised institution, multiple body-type, or a NHRI, fulfil the mandate and powers requirements of the OPCAT. Immediate steps should also include granting the adequate funding, both for new institutions and for existing institutions that take on a new NPM mandate. States should also notify the SPT of NPM establishment or designation, via a letter to the SPT Secretariat.

Mapping
Before arriving at a consensus about the most appropriate NPM model, mapping existing oversight and monitoring institutions is essential. At the same time it is also important to map all places where people are deprived of liberty. These two mapping activities may be done by the government but could also be achieved by civil society or existing oversight bodies, such as the national human rights institution (NHRI).

Any mapping of existing oversight institutions should consider a number of factors, including the key criteria referred to above, as well as practical issues, including:

• Legislation or other basis of establishment
• Existing mandate and jurisdiction
• Existing powers, including in relation to both public and private places of deprivation of liberty
• Independence (both real and perceived)
• Existing human, financial and logistical resources
• Relations with the authorities and other relevant actors
• Working methods, and existing practices and experience, including in relation to detention monitoring.
• Immunities and privileges of both elected and hired members and staff

In addition, this process should seek to gather information on the number and type of places of deprivation of liberty in the country, including ‘traditional’ places such as prisons and police stations, as well as psychiatric institutions, migrant detention centers, aged care homes, and others, including those under both private and public control.

Together, this mapping of oversight bodies and places of deprivation of liberty should lead to an understanding of where there are gaps and overlaps in oversight, as well as the different changes (in terms of mandate or powers, for example) that may be needed for different oversight bodies to become OPCAT-compliant NPMs.

Mapping may be a particularly complicated process in federal or decentralised states. Here, the mapping process may wish to consider not just the number and type of places of detention in a given jurisdiction but also their legal framework, who is in charge of relevant policy, and who has day-to-day management responsibility.

Consultations
On the basis of this mapping, the best way to arrive at a consensus about which NPM model is most appropriate is to consult with a broad range of stakeholders in an inclusive and transparent process, involving, for example:

• Members of parliament.
• Technical experts from relevant ministries and departments.
• Civil society organisations, including association of detainees’ relatives, and people with lived experience
• Oversight bodies, including the NHRI and specialised oversight bodies.
• Other institutions or individuals who carry out visits to places of detention (such as inspectorates, judges, and community-based  “lay”  visiting schemes).

It may also be useful to seek the advice at this stage of other NPMs in the same region or in similar contexts and, in some cases, regional, international and non-governmental organisations such as the SPT.

Relevant Government agencies should proactively publicise the process, opportunities for participation (including both online and face to face meetings), and the criteria, methods and reasons for the final decision on the NPM model – ideally chosen through consensus among those engaged in the consultation process.

This process can take place through meetings and workshops, as well as online and through calls for written comment or contribution.

Under the OPCAT, states have considerable flexibility regarding the NPM format that is eventually chosen. There are, however, a number of key requirements set out in Articles 18, 19 and 20 of the OPCAT with which NPMs need to comply.

An NPM’s mandate is to regularly examine the treatment of the persons deprived of their liberty in places of detention (Article 19(a)), make recommendations to the relevant authorities (Article 19(b)), and submit proposals and observations on legislation (Article 19(c)). In order to carry out this mandate, NPMs must be functionally independent (Article 18(1)). This means it is autonomous from state authorities and has its independence guaranteed by law. If an existing institution, such as an NHRI is designated as NPM, changes may need to be made in order to ensure it is independent. For multiple body  NPMs, each of the institutions that make up the NPM need to fulfill this criteria.

NPMs should also have certain powers enshrined in law, including, among others, access to information (Articles 20(a) and (b)), (unannounced) access to places of detention (Article 20(c)), the opportunity to interview people who are detained (Article 20(d)), and the right to choose where they visit and who they interview (Article 20(e).  

In addition, states have an obligation to ensure that NPM members and staff have the required capacities and professional knowledge. Part of this requirement is that they are multidisciplinary and include expertise from a range of fields relevant to deprivation of liberty. In order to achieve this, many NPMs rely on independent experts in addition to their own members and staff. Article 18 of the OPCAT also requires NPMs to strive for both a gender balance, and an adequate representation of ethnic and minority groups in the country.

Article 3 of the OPCAT establishes the obligation for each state party to “set up, designate or maintain” one or several NPMs. To designate an NPM, states need to decide which institution will take on the mandate. This decision is then put into effect through a law or decree.

This is the first of three phases that states need to go through in order to set up an effective NPM. Phase two is NPM establishment, which is achieved when the members or staff are in office and the basic requirements for operation are in place. In the third phase, NPMs then become functional as they begin to conduct preventive visits, make reports and recommendations and enter into dialogue with the authorities.

Article 17 of the OPCAT gives states a deadline of one year from the date of ratification to designate their NPM. Given the complexity of the task, however, many states have taken longer to complete this first phase. In order to remain in compliance with this article of the OPCAT this has meant that some states have begun preparatory work before ratification. Others have invoked Article 24, which gives them an additional three years (for a total of four) to designate their NPM.