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Statement by Mr. Malcolm Evans, Chairperson Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment at the 70th session of the General Assembly

New York, 20 October 2015

Distinguished delegates, colleagues and friends,

It is with great pleasure that I present to you the 8th Annual Report of the Subcommittee on Prevention of Torture (SPT) and update you on its subsequent activities. As you will know, the OPCAT mandates the OPCAT Committee: (a) to engage in a constructive dialogue with States parties on reducing the risk of torture or ill-treatment, based on visits which it conducts to places where persons may be deprived of their liberty; (b) to advise and assist States parties in the establishment of their National Preventive Mechanisms (NPMs) and engaging with NPMs in the furtherance of their work; and (c) to co-operate with other international, regional and national bodies and agencies engaged in activities related to torture prevention.

The OPCAT is now in force in 80 countries from all regions of the world, with Mongolia, South Sudan, Rwanda and Belize having joined the system so far in the course of 2015. This means that over half those States which are a party to the UNCAT are also party to the OPCAT and we look forward to more doing so soon. We supports universal ratification of the UNCAT and I should like to take this opportunity to reiterate our continuing support for the Convention against Torture Initiative lead by Chile, Denmark, Ghana, Indonesia and Morocco – and supported by very many others. We believe that the complementarity of the Convention and Protocol needs to be highlighted, and the importance of torture prevention more fully appreciated, in order to ensure that the maximum benefit can be had from the mechanisms which the international community has put in place to address torture and ill-treatment in places of detention. This complementarity is, of course, reflected on this platform, and I am delighted to be once again sharing this morning with Mr Claudio Grossman, Chair of the Committee against Torture, and Mr Juan Mendez, the UN Special Rapporteur, whose contributions to combatting torture have been both inspirational and transformational.

For itself, we has responded to the increasing number of its States Parties by seeking, once again, to undertake more field visits. In 2014 it undertook seven visits – its most yet – to Azerbaijan, Ecuador, Maldives, Malta, Nigeria, Nicaragua and Togo. In 2015 we have moved forward again, planning to visit nine countries, and we have so far conducted visits to Azerbaijan, Guatemala, Italy, Nauru, Netherlands, the Philippines, Turkey, and, as I speak, a visit to Brazil is underway. I should say that we were particularly pleased to be able to undertake a successful visit to Azerbaijan, enabling us to complete our work which had been commenced in a visit the previous year.

At one level, this may seem an impressive achievement – and given the level of resources devoted to the work under the OPCAT within the OHCHR, it is. However, I doubt that it is possible for us to significantly increase the number of visits we undertake in the foreseeable future and that means that, despite our very best efforts, we are not in a position to properly undertake our visiting mandate as the drafters of the OPCAT intended. The SPT has not yet felt much as much benefit from the outcome of the Treaty Strengthening Process and Resolution 68/268 as it had expected. Rather than provide significant additional capacity, it has merely stemmed the further erosion of levels of provision which were already inadequate. This needs to be addressed if the claims of the UN to be tackling torture seriously are to be taken seriously.

With 80 states parties, we are barely undertaking visits on a ten year cycle, which compares very badly indeed to the reporting cycles to other treaty bodies, which are between 2 and 5 years, and a four yearly cycle for Universal Period Review. No explanation has ever be given for why this deplorable situation can possibly be considered acceptable, particularly when the entire point of the OPCAT is prevention. Moreover, as more States ratify, this situation is only going to get worse. It also needs to be remembered that whilst in its early years SPT visits were in the order of 8-10 days, in recent times the length of many visits is considerably shorter and focus on perhaps on a single issue – such as the establishment or functioning of the National Preventive Mechanisms, or of the situation of a particular category of detainees. For example, the 2015 visit programme has had a particular focus on migrants, as reflected in our visits to Nauru and to Italy in particular. No matter how important and pressing the issues we have chosen to focus on are, having such a focus inevitably means that many other issues concerning prevention remain under-explored. We believe it is vital that the work we do is of as high a quality as possible. The truth is that in order to increase the number of states we engage with through our visits, we have had to compromise by limiting the length, and hence the focus, of those visits.

Compromise is not a word that should be used in the context of torture prevention and the SPT is deeply troubled by its continuing inability to act as it ought for the want of a proper appreciation of its needs. We are a treaty body, but our work it not like that of other treaty bodies and it needs to be staffed, supported and resourced in a way which reflects its unique mandate. 2016 will mark the 10th Anniversary of the entry into force of the OPCAT, and the SPT sincerely hopes that a gestation period of 10 years ought to be sufficient for this basic point to be grasped.

In recent times the SPT has noted with surprise, and no little dismay, that more and more state parties claim to be unaware of the nature of the SPT’s visiting mandate. As is well known, the entire point of the OPCAT is to provide for the unannounced visiting of any place within a state party where the SPT believes that persons may be deprived of their liberty. This obviously and inevitably means that both the timing of, and the places to be visited, are to be decided upon by the SPT. The SPT is therefore surprised that there is an increasing tendency for states to question the timing of SPT visits, or even to suggest that the SPT should not undertake its visit at all! This is incomprehensible.

At the same time, I am pleased to say that the number of National Preventive Mechanisms established and functioning under the OPCAT system continues to rise, as does the quantity and quality of their work. National Mechanisms are the ‘front line’ of torture prevention and the SPT believes that we must do all we can to fulfil our convention mandate to assist them in their work. Once again, I am afraid, there is hardly any provision of support for such work within the OHCHR. We continue to be resourceful in attempting to address this shortcoming but it inevitably means that there are missed opportunities for giving timely advice and technical assistance to States Parties and National Mechanisms who are frequently approaching us for assistance that we are willing to give, wanting to give, but unable to provide. This is frustrating. There remains much to be done. Many NPMs are themselves understaffed or under-resourced, or have legal mandates which fall short of all that OPCAT requires. Working together, however, many of these problems can be addressed. It is very encouraging to see the positive responses of some states to the work of their NPMs and the tangible improvements in prevention which have come about as a result of this.

Another area in which we know that our work is in need of enhancement concerns how we engage in dialogue with states following our visits. Visits are the start of a process within the OPCAT system, not it end. Following each visit there needs to be put in place a ‘tailored road map’ of how best the relevant state authorities, the SPT and, where applicable, the NPM can be in regular contact concerning progress regarding the consideration and implementation of recommendations. This needs to be fluid, discursive and ‘engaged’ in order to be effective. Sterile exchanges of formal documentation rarely achieves timely outcomes for those at risk of ill-treatment, or those currently being ill-treated. There is an urgency to the work of prevention which is not reflected in current processes.

For our part, we are committed to being as flexible and responsive as it can be. We are increasingly seeking to use our sessions as platforms for ongoing dialogue with national authorities through the use of electronic communication, but the truth is that the facilities for this within the OHCHR are woefully inadequate. We seek all opportunities to engage in a positive fashion with states following each visit – it is inconceivable that preventive dialogue should be ‘on hold’ until the next formal SPT visit, many years hence. We believe there is a need to find additional ways in which dialogue can take place and we would welcome a discussion on this. We are convinced that this is what States wish for, and we wish to be able to effectively respond to their wishes. One consequence of this is that more and more of our Plenary meeting time is devoted to meetings with permanent missions, representatives of states parties and national authorities and national preventive mechanisms. As every visit generates its own ongoing follow-up process and dialogue, there are now some 30 such conservations proceeding in parallel. This places a huge burden on the SPT and its secretariat, as well as meaning that we have inadequate time to spend in discussion with States Parties. Coupled with the additional work associated with the increased visiting programme and NPM related activities, the time has come when the SPT really does need to be able to spend more time in Plenary sessions across the year. It could well be desirable – and cost neutral – for us to meet for two sessions of two weeks, rather than for three one week sessions as at the moment.

Another matter which I need to mention concerns the OPCAT Special Fund established under Article 26 of the Optional Protocol, which assists States fund the implementation of recommendations made by the SPT in published Visit Reports. For four years now the Fund has supported an increasing number of valuable projects in many countries around the world. Now, unfortunately, the Fund is facing closure due to a lack of donations. It would also be the first such voluntary fund to collapse for the want of support. This, I think, would send a very negative signal regarding the commitment of States to the prevention or torture and ill-treatment and I ask you all to consider supporting the Fund as a matter of urgency – or else it will die.

This year, our Annual Report contains an important section on the approach of the SPT to pre-trial detention – or, as it might better be described in some situations – ‘no trial’ detention. We have noted with concern the rise and rise of forms of administrative detention, often in conditions which are inhuman and degrading. The SPT believes that it is very important to take a systematic approach to tackling these problems which takes full account of the broader political, legal and socio-political context, which so often provides the drivers for this. Time precludes a full presentation of that statement, but I should like to commend it to your consideration.

As I conclude, my final words must be positive and be in welcome of the revised Standard Minimum Rules for the Treatment of Prisoners, now being referred to as the ‘Mandela Rules’. These are a welcome and long overdue development – but they also underscore how much there is to do in order to ensure that those deprived of their liberty are treated in a humane fashion. Regrettably, far too many of the Rules remain aspirational and do not reflect current reality. The SPT embraces the aspiration of the Rules, and looks forward to drawing and building on them in its future work.

Let me thank you for your kind attention and I look forward to responding to your questions.