Transcript LLD presentation by Berber Hettinga

ISS Conference, 21 August 2013
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Introduction
The obligation to prevent torture
The obligation to establish independent oversight under
UNCAT, OPCAT and RIG
South Africa’s path to ratification of OPCAT
Existing mechanisms of independent oversight in South
Africa
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SAHRC
JICS
Police, immigration, children and youth care/detention
Psychiatric hospitals, drug treatment centres, etc
South African Human Rights Commission
Judicial Inspectorate for Correctional Services
Possible ways of setting up a National Preventive
Mechanism
Conclusion
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Article 2(1) UNCAT obliges States Parties to take
effective legislative, administrative, judicial or
other measures to prevent acts of torture in any
territory under its jurisdiction. The UN
Committee against Torture (CAT) has interpreted
‘effective measures’ as meaning ‘all measures, as
appropriate, required to protect all members of
society from acts of torture.’
Article 16(1) UNCAT further places an obligation
on States Parties to prohibit and prevent cruel,
inhuman or degrading treatment or punishment.
CAT has recognised that the ‘measures required
to prevent torture must be applied to prevent illtreatment.’
Robben Island Guidelines, Part II
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Obligation to establish independent oversight
 UNCAT: arts 2(1),11 and 16 and CAT
 Article 4(1) of OPCAT places an obligation on States
Parties to allow visits in accordance with the Protocol,
by the SPT and the designated National Preventive
Mechanism (NPM) to ‘any place under its jurisdiction
and control where persons are or may be deprived of
their liberty.’
 RIG 38-44, in particular:
RIGs 41 & 42 call on States to establish, support and
strengthen independent national institutions ... with
the mandate to conduct visits to all places of
detention and to encourage and facilitate visits by
non-governmental organisations.
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It must be independent.
It must have a mandate to conduct visits to all places
where people are or may be deprived of their liberty.
It must have a mandate to conduct regular and
unannounced visits to all places of detention and their
installations and facilities.
It must have access to all information concerning the
number of persons deprived of their liberty as well as their
location.
It must have access to all information about the treatment
of persons deprived of their liberty and their conditions of
detention.
It must be able to choose to interview persons and to
conduct interviews in private.
It must make recommendations aimed at improving the
treatment and conditions of detention.
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South Africa signed OPCAT on 20 Sep 2006, but has
not yet ratified it.
Civil Society, the South African Human Rights
Commission and Parliament have urged Government
to ratify on several occasions.
Government has expressed intention to ratify on a
number of occasions, but also stressed it prefers to
have a plan for an NPM in place before doing so.
Some civil society consultation has taken place on the
development of an NPM.
Particularly, the Association for the Prevention of
Torture (APT) works with relevant government
officials in preparing for ratification.
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Two existing bodies with a comprehensive
oversight mandate:
◦ SAHRC
◦ JICS
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Other forms of detention in need of
oversight:
◦ Police, immigration, children and youth
care/detention
◦ Psychiatric hospitals, drug treatment centres, etc
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Human rights oversight body with wide mandate:
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However:
◦ investigate human rights violations;
◦ perform research on a wide range of human rights
issues;
◦ make recommendations to all levels of government.
◦ no legal power to enforce findings and
recommendations;
◦ serious lack of resources;
◦ although visits to prisons and other places of detention
have occurred, currently no practice of doing this
regularly;
◦ SAHRC does not consider itself suitable to take up full
role of NPM.
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Mandate:
Inspect all prisons;
Report on treatment of prisoners;
Report on conditions and practices in prisons;
May receive and deal with complaints;
May make any enquiry and hold hearings for the
purpose of conducting an investigation;
◦ Receive mandatory reports from heads of
correctional centres on deaths, segregation, use of
force and use of mechanical restraints.
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Strengths:
◦ Relatively wide mandate;
◦ Independent Visitors regularly inspect all prisons;
◦ Independent Visitors play important role in
assisting prisoners to bring and solve complaints;
◦ Annual and quarterly reports bring important
information on prisons in the public domain,
therefore ensuring greater transparency and
accountability;
◦ Engagement with civil society.
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Weaknesses:
◦ Lack of functional independence:
 Established through Correctional Services Act;
 Dependent on DCS for budget and administrative
services;
 DCS involvement in appointment of key positions;
 Conflicts of interest.
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Inefficiency
Vacancies, particularly ICCVs
Inmate perceptions
Lack of public engagement
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One institution, such as SAHRC or JICS, to
expand mandate/resources;
Committee consisting of different experts;
Representatives of several institutions
responsible for oversight form a committee
to lead NPM;
One institution (perhaps SAHRC) in charge of
coordinating a range of specialised sectorspecific institutions;
Civil society alone, in any case as partner.
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THANK YOU!
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