Turning recommendations into reality: improving the impact of detention monitoring bodies

Thirty years after the entry into force of the UN Convention against Torture (CAT), there is still a considerable implementation gap and torture continues to exist worldwide. One of the most significant developments over the last few years has been the establishment of National Preventive Mechanisms (NPMs). While these bodies carry out regular monitoring visits to places of detention, the follow up and implementation of their recommendations issued upon the visits remains a weak point. However, this will be decisive in proving that they can make the necessary sustainable contribution to the prevention of torture.

This year the UN Convention against Torture (CAT) is celebrating its 30^th anniversary and has been ratified by 156 States as of November 2014. As noted by the UN Special Rapporteur on Torture, if States implemented their obligations under the CAT and other relevant human rights treaties as well as soft law documents, torture could be effectively eradicated. However, there is a considerable implementation gap and torture can still be found worldwide, often as a routine practice.

Monitoring of places of detention has been recognised as one of the key methods to prevent torture and ill-treatment. On this basis, 25 years ago the European Committee for the Prevention of Torture (CPT) was established to visit detention places in member states of the Council of Europe. The important work of the CPT served as an inspiration for the development of the Optional Protocol to the CAT (OPCAT), which entered into force in 2006 and established an international Subcommittee on the Prevention of Torture (SPT). These international mechanisms are however not in the position to carry out regular monitoring in all member states and do not have sufficient resources to follow up their recommendations and to offer support in their implementation. Therefore the more important contribution of the OPCAT is that it obliges its member states to establish independent National Preventive Mechanisms (NPMs) to carry out regular visits to all places of detention, report about the situation of torture and ill-treatment, make recommendations to the state and enter into a dialogue on their implementation. The gap in continuity and effective follow-up by international monitoring bodies can thus be filled by NPMs, if provided with the adequate mandate, powers and resources.

Despite its importance, so far research on the follow-up procedures of NPMs and implementation of their recommendations is sparse. The ongoing research carried out by the Ludwig Boltzmann Institute of Human Rights and the Human Rights Implementation Centre at the University of Bristol on NPMs in the European Union shows that the follow-up and implementation of recommendations is still a weak point of most NPMs.

While NPMs clearly see follow-up and monitoring implementation of their recommendations as their responsibility, most of them have not developed a specific strategy or tools in that regard. This weakens the effectiveness of NPMs, which may eventually lead to a certain ‘monitoring fatigue’ within the mechanisms and the monitored institutions. Ultimately it might even call into question the ability of NPMs to have a measurable impact on the prevention of torture and ill-treatment. Therefore it is of crucial importance that NPMs develop a clear strategy and invest the necessary resources in following up their recommendations and at the same time measure and promote their implementation.

The basis of effective follow-up is comprehensive, consistent and analytical reports and effective recommendations. NPMs produce visiting reports and annual reports. In order to analyse some issues in more detail, some NPMs have also produced ‘thematic reports’ (eg. in Bulgaria, France, Poland and Spain). Regarding recommendations the ‘double-SMART’ criteria have been developed for NPMs suggesting that all recommendations should be: Specific, Measurable, Achievable, Results-oriented, Time-bound, Solution-suggestive, Mindful of prioritisation, sequencing & risks, Argued, Root-cause responsive and Targeted (source: Association for the Prevention of Torture). In view of ensuring adequate follow-up and implementation it is naturally crucial that recommendations state who should do what by when. Unlike international mechanisms such as the SPT and CPT, NPMs are not constrained by the principle of confidentiality, under which the authorities monitored are the ones who decide whether and when the findings are published, thus restricting the possibilities for follow-up. Instead the NPMs are meant to operate under the principle of transparency, opening up places of detention to public scrutiny. Therefore, it is key that NPMs publish visiting reports and recommendations (as well as relevant information on their working methods) and there are only a few NPMs in the EU who do not yet do so.

Moreover, State authorities are obliged by the OPCAT to “examine the recommendations of the NPM and enter into a dialogue with it on possible implementation measures” (art. 22 OPCAT). In some countries this has been transposed into a legal obligation to either conform to the recommendations or inform about the reasons for failing to do so (eg in the case of Austria). The role of NPMs is to advise the authorities and provide guidance to find concrete solutions to the problem of torture and ill-treatment in a constructive and cooperative spirit. It requires many different ways of interaction to create a trustful relationship and promote the implementation of the recommendations. These may be formal (eg. through working groups) as well as informal (eg. regular meetings or phone conversations) but should go beyond just a written exchange. The dialogue should also engage different levels of the State, including the responsible staff in the institution visited.

The assessment and documentation of implementation and the measuring of compliance with human rights norms is an essential part of the follow-up work of an NPM. It is all the more surprising that many NPMs do not yet document their recommendations in a systematic way or have no clear methods or a formalised system for measuring their implementation. The majority of NPMs in the EU stated that their primary tool for following up and assessing implementation are follow-up visits. However, some NPMs also document the recommendations and their implementation in a database, use indicators and benchmarks or encourage state actors to develop action plans as a basis of measuring implementation (see for example in Spain and the UK). Besides these and other good practices, NPMs could also benefit from the extensive research and practice of other institutions in measuring human rights to consequently develop their own methodology and strategy.

Assessment and evaluation do not yet ensure the implementation of recommendations and many monitoring mechanisms complain about the failure of States to take adequate measures to prevent torture and ill-treatment. Therefore a collaborative follow-up process would be useful where the NPM cooperates with state as well as non-state actors. While regular contact with state authorities is in place for all NPMs, the involvement of civil society is not always evident. Some NPMs include civil society organisations (eg. Slovenia) or independent experts (eg. Austria) or cooperate in joint visits to places of detention (eg. in Bulgaria, Croatia and Estonia) and other NPMs cooperate with civil society representatives through special advisory bodies (eg. Austria, Portugal, Spain). However, it seems that a formal inclusion of civil society does not always guarantee effective cooperation in practice. Despite the important role civil society plays in the prevention of torture, many NPMs have no particular cooperation strategy and in some countries there appears to be a lack of trust on both sides.

Many NPMs also lack a strategic approach to engage with the media, although this is recognised as indispensable in order to ensure the visibility of the NPMs’ work, to influence how information is channeled and to build partnerships to create public pressure. Moreover, the regular exchange with international as well as other national monitoring mechanisms can be very useful to exchange ideas and experiences on the working methods as well as comparative good examples of implementation from other states. Overall, it appears that more time and resources within NPMs are needed to strengthen the implementation of their recommendations. This requires a thorough analysis of stakeholders and partners and the development of a concise strategy to bring about change in laws, institutions, skills and mindsets.

The establishment of NPMs is a sign of great hope for progress towards prevention of torture worldwide. However, whether NPMs can have a systemic and sustainable impact depends on the implementation of the recommendations addressing the root causes of the problem. This is naturally the responsibility of the State and requires political will by the authorities, but the NPMs play a pivotal role in this process by developing an effective strategy of follow-up and engaging with different stakeholders to advise and pressure authorities to comply with their obligation to prevent torture. More research and exchange on good practices among torture monitoring bodies can certainly help NPMs to reflect upon this role and develop their own approach and strategy. Ultimately strengthening the follow-up and implementation of recommendations will be crucial for their success.

About the author

Moritz Birk is Head of the ‘Human Dignity and Public Security’ team at the Ludwig Boltzmann Institute of Human Rights in Vienna, Austria. The Institute is currently working with the Human Rights Implementation Centre at the University of Bristol on an EU-financed research project engaging with NPMs in the European Union to identify best practices of follow-up and to strengthen the implementation of their recommendations. The project will be concluded in May 2015 with the publication of a Good Practice study on follow-up and implementation of torture monitoring bodies. The above stated examples only represent preliminary research results.

Update! The report on this research is now available: Enhancing impact of National Preventive Mechanisms.

About this blog series

To mark our 25th Anniversary and prepare for the Crime Congress in Qatar in April 2015, PRI is running a series of monthly expert guest blogs, addressing interesting current trends and pressing criminal justice challenges in criminal justice and penal reform.

Blogs will be available here on our website and as podcasts on the 25th of each month from May 2014 to April 2015. All blogs in the series so far can be found here.