Dialogue avec les autorités

What is dialogue with the authorities?

Dialogue with the authorities is at the heart of the preventive approach underpinning the OPCAT and the work of NPMs. It is a meaningful and sustained process of engagement with a wide range of authorities, in order to achieve the desired changes. It consists of a series of direct interactions through different means, including face-to-face contacts such as meetings with prison directors at the end of a monitoring visit or thematic roundtables with relevant authorities. Dialogue is not a mere administrative process. It goes beyond the simple exchange of written correspondence as it relies on relationships.


Dialogue with the authorities requires NPMs to develop constructive and collaborative – but critical - working relationships with the authorities, based on mutual respect and trust. This may entail some level of confidentiality regarding the information shared between NPMs and authorities. Maintaining a constructive relationship is not synonym of complaisance though. In this respect, it is very important for NPMs to preserve their independence when engaging in dialogue with the authorities.


Experience shows that establishing and maintaining dialogue takes time. Therefore, NPMs need to consider it in their strategy and dedicate enough time and resources to it in their planning.

 

Why is dialogue with the authorities important?

The OPCAT places a specific obligation on the authorities to enter into a dialogue with NPMs in relation to their recommendations (Article 22). Although no similar obligation is clearly set for NPMs under the treaty, it is widely recognised that dialogue forms the core of their preventive mandate, as also established by the SPT in its Analytical assessment tool for NPMs, (CAT/OP/1/Rev.1, para. 9(a)).


Dialogue with the authorities may serve different purposes. It is key to achieve long-term and sustainable changes, especially considering that recommendations made by NPMs are usually not binding on the authorities. Having a meaningful and sustained dialogue is an essential tool in the hands of NPMs to give further explanations to the authorities regarding the problems observed and the recommendations issued. Dialogue is also very important to understand the point of view and challenges faced by the authorities in implementing NPM recommendations, to identify good practices and, on this basis, to discuss possible solutions to the problems encountered. Dialogue also creates a constructive climate that helps overcoming resistance and bringing about change.


Dialogue is also key to make the institution and its mandate known by the relevant authorities. It allows NPMs to build their legitimacy and to position themselves as reference institutions on issues related to deprivation of liberty, in order to exercise leverage and increase the impact of their recommendations.


The NPM also engages in dialogue with the authorities to ensure its own sustainability over time, for example by discussing and agreeing upon its annual budget with the competent authority. Dialogue is also helpful – although in some cases not sufficient – to overcome obstacles that NPMs may face in the implementation of their mandate, for example, when they are denied access to a specific place of detention.

 

With which authorities do NPMs maintain dialogue?

The NPMs’ holistic approach requires identifying possible root causes of the problems encountered, as well as the risks that increase the possibility of torture and other forms of ill-treatment to occur. Therefore, NPMs need to analyse not only the conditions and functioning of places of detention, but also the broader regulatory, institutional, policy and legal frameworks.  


This is why NPMs need to engage with a variety of authorities at different levels:

  • Authorities responsible for running places of detention (i.e. directors of prisons, directors of psychiatric institutions).
  • Staff working in places of deprivation of liberty, including prison guards, nurses, social workers, police officers and immigration officers.
  • Line Ministries and supervising authorities of places of deprivation of liberty or services within those places, such as the Ministry of Interior, Ministry of Justice, Ministry of Health, Immigration Service, Penitentiary Service. Within those institutions, it is important for NPMs to engage both at the political/high-level and technical one, with specific departments that are relevant for their work.
  • Other Ministries or specialised agencies or departments of the executive branch, such as the Ministry of Finance, Human Rights Secretariat, Women Secretariat.

When they start to be operational, it is recommended that NPMs map out the institutions - and departments within each institution – that are relevant to their work, and then have a first meeting with them, including to explain their mandate. NPMs would also need to regularly review and update the institutional mapping. Mapping out the relevant institutions allows NPMs to better target their dialogue and be strategic in their interactions. A useful and practical tool to do that is the stakeholder mapping.


While the main addressees of NPM dialogue are authorities from the executive branch, NPMs also interact with members of Parliament and judicial actors, such as judges and public defenders. They may be the addressees of some NPMs’ recommendations but, more often, maintaining dialogue with these actors is instrumental to build collaboration, for instance to get NPMs’ recommendations implemented by the executive authorities.  

 

When do NPMs enter into dialogue with authorities?

NPMs may enter into dialogue with authorities at different moments, in relation to visits to places of detention or beyond visits, depending on the specific objective of the dialogue.


Dialogue related to visits to places of deprivation of liberty may take place at different stages. Its timing and process are crucial to maintaining a sustained and constructive relation with the authorities and ensure that recommendations are effectively implemented.


Dialogue between the NPM and the authorities starts already before NPMs start carrying out visits to places of deprivation of liberty, to explain their mandate and inform the authorities about their obligation to provide unrestricted access to the NPMs. NPMs’ experience shows that taking the time to introduce their mandate to the authorities at an early stage can avoid problems during visits.


During the visit, the NPM engages in dialogue both with the authorities in charge of running the place and the staff working there. It is important that NPMs take enough time to conduct the visit, enabling to build a positive relationship with the authorities since the beginning of the visit, to make sure that they are clear about the methodology and objectives of the visit. At the same time, to ensure compliance of the authorities, NPMs need to maintain their independence and project authority and professionalism. To do that, it is important for NPMs to abide by key principles for monitoring places of detention, including being respectful of the authorities in charge of the place and the staff working there, being accurate and objective, and behaving with integrity.


Following the visit, many NPMs send the draft visit report and recommendations confidentially to the authorities. This allows the NPM to receive early feedback and eventually correct any factual errors.  It is worth noting that such practice does not mean that authorities would influence the content of the report. It refers to factual information that could be amended, such as the total number of detainees in one place. This information is not the result of the NPM’s analysis and findings, but it refers to objective data that was communicated to them by the authorities. Some NPMs also have face-to-face interactions with the authorities to discuss orally their draft reports and recommendations, promoting transparency, encouraging a constructive relationship and increasing the possibility of implementation of recommendations. Once the final report is shared with the authorities and made public, NPMs engage in a sustained dialogue process to follow-up on their recommendations and ensure their implementation. In practice, it means not only relying on written exchanges such as emails or official correspondence, but also – and most importantly – maintaining face-to-face or online meetings and informal interactions, for instance via telephone or WhatsApp, to establish trust .


NPMs have direct interactions with the authorities also beyond their recommendations following visits to places of detention, for example to discuss relevant thematic issues or to advocate for legal and policy changes. NPMs are also regularly consulted on specific issues and provide expert advice to authorities.

How does dialogue work in practice?

Dialogue can take different forms. NPMs can engage in bilateral dialogue with one institution at a time, but also have dialogue with several institutions at the same time. For example, some NPMs hold inter-institutional roundtables to discuss specific issues that involve different authorities. In some countries, for example, NPMs have convened a series of meetings with the police, the Ministry of Health and judicial actors to advance the implementation of detention safeguards.  NPMs also organise discussions with the authorities on their draft recommendations, in order to ensure buy-in at an early stage. Some NPMs hold annual meetings with the authorities, for instance the OPCAT focal points within each relevant institution, to review the implementation of their recommendations and analyse what has or has not been done, and why. The holistic approach, authority and independence place the NPM in a privileged position to bridge the dialogue gap between different authorities, but also between authorities and civil society actors.

For dialogue to be meaningful and effective, it is essential for NPMs to target the relevant institutions and the key actors within those institutions. It is also important to engage regularly over time. A good practice is having focal points designated within ministries and other relevant institutions, with whom NPMs can have more informal and regular exchanges.

Many NPMs request answers in writing about the implementation of their recommendations from the authorities, often with a deadline for response. In addition to the written and formal exchange, it is highly recommended to have closed face-to-face or online meetings with the authorities and also maintain informal exchanges via telephone or other means (such as WhatsApp for instance) to build trust, overcome resistance, understand what are the restrictions and challenges of the authorities, and reach agreements.

Depending on the NPM, the heads, members and staff of the institution may have different responsibilities when it comes to dialogue with the authorities. This may depend also on the dialogue format and addresses, for instance whether the dialogue involves high-level authorities or technical staff. While there is no single model applicable to all NPMs, it is important that NPMs clearly define in advance the responsibilities relating to dialogue with the authorities within their team.  

 

What are the limits to dialogue?

Dialogue should be the guiding principle in all activities conducted by the NPM. However, it may have some limitations.


Dialogue requires willingness and inclusion of both parties. Genuine and meaningful engagement is possible only if there is trust and respect between the NPM and the authorities, and if the NPM preserves its independence. It is important that the NPM does not let only authorities dictate the terms on which the dialogue takes place.


In some circumstances, NPMs may need to draw a line when it comes to dialogue with the authorities and take a different approach. For example, it may be helpful to also approach the media or mobilise other national or international actors when there is an urgent and serious issue uncovered, or when there is a lack of engagement from authorities over the long term. Even in those cases, it is important for NPMs to try to keep some form of interaction with the authorities, because they are the ones who have the responsibility to bring about change.