OPCAT

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Optional Protocol to the Convention
Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment

Title (engl.): Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Abbreviation: OPCAT
Date: Dec 18, 2002
Come into effect: June 22, 2006
Reference: Chapter IV Treaty 9b UNTS
Reference (German): SR 0.105.1
Contract type: Multinational
Legal matter: Human rights
Signing: 75
Ratification : 83 ( current status )

Germany: Ratification (Dec. 4, 2008)
Liechtenstein: Ratification (Nov. 3, 2006)
Austria: Ratification (Dec. 4, 2012)
Switzerland: Ratification (Oct. 24, 2009)
Please note the note on the applicable contract version .

OPCAT members: dark green - ratified, light green - signed

The Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( English Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , OPCAT ) is (2006) an important addition to the anti-torture United Nations Convention (1984). This establishes an international system for inspecting places of detention, as it has been in Europe since 1987 in the form of the Committee for the Prevention of Torture .

history

The idea for this type of torture prevention goes back to the Swiss banker and philanthropist Jean-Jacques Gautier . In 1977 he founded the “Swiss Committee for the Prevention of Torture” in Geneva (today: Association for the Prevention of Torture, APT). Based on the model of the inspections of prisoner-of-war camps by the International Committee of the Red Cross , a worldwide system of visits was to be established at all detention sites. In 1978 the idea arose to anchor this visit system in the form of an additional protocol to the anti-torture convention of the United Nations, which was still being drawn up at the time. When this was finally passed in 1984, the majorities required for the planned optional protocol were initially lacking. The committee against torture entrusted with the implementation of the UN Convention had only limited possibilities: it was able to examine and discuss the reports prepared by the governments and, if necessary, appoint a "special rapporteur" to examine allegations of torture against individual states. But neither the members of the committee nor the UN Special Rapporteur on Torture could visit the country, let alone carry out on-the-spot investigations, without the consent of the government concerned.

At the same time, the Council of Europe had implemented the idea of ​​an inspection system for all places of detention within the regional framework with the European Convention against Torture of 1987. The successful practice of this convention, in particular the visits and reports of the European Committee for the Prevention of Torture (CPT), were probably decisive for the long-planned Optional Protocol finally coming about. OPCAT was decided on December 18, 2002 by the General Assembly of the United Nations and opened for signature. The Optional Protocol entered into force on June 22, 2006, after ratification by the minimum number of 20 states required for it.

Austria ratified the Optional Protocol on December 4, 2012. Germany signed the agreement on September 20, 2006, implemented it into national law by the Bundestag's Approval Act of August 26, 2008, and ratified it on December 4, 2008. Switzerland ratified it on October 24, 2009.

Goal setting

The objective of the OPCAT is the prevention of torture and other cruel, inhuman or degrading treatment or punishment. This should be ensured through a system of regular visits by independent international and national institutions to all places where people are deprived of their liberty (Art. 1). This task is a Subcommittee on Prevention ( Subcommittee on Prevention of Torture; SPT ) transfer (Art. 2). The States parties have undertaken to give the subcommittee unrestricted access to all information about places of detention, unrestricted access to these places of detention themselves and the opportunity to speak to prisoners unsupervised (Art. 14). In accordance with the European system, the results of the inspection are initially only communicated in confidence to the government of the contracting state and are only published “ if the contracting state so wishes ” (Art. 16, Paragraph 2). Only if a state party refuses to cooperate with the subcommittee, the Committee against Torture can decide to unilaterally issue a public statement or to publish the report of the committee of inquiry (Art. 16 para. 4).

Subcommittee on Prevention of Torture (SPT)

On February 19, 2007, the Subcommittee on Prevention (SPT) met for the first time. It is made up of people who are proposed by the member states and who are elected by the representatives of the member states with a simple majority. They should be people of recognized moral stature and show competence in the relevant area of ​​human rights. They should carry out their work independently and impartially and be responsible only to their conscience. They are elected for four years, with half of the members being replaced every two years; Re-election is possible. The names of the current members can be found on the SPT website.

National preventive mechanisms

While the inspection system presented largely follows the one that has been in use in Europe since 1987, the Optional Protocol contains a provision going beyond this. Article 3 states: “ Each State Party shall establish, designate or maintain one or more bodies at the national level to carry out visits to prevent torture and other cruel, inhuman or degrading treatment or punishment ”. The state should assume several guarantees for this “national prevention mechanism”: the independence of the institution and its staff, the necessary expertise, balanced gender participation, adequate representation of the country's ethnic groups and minorities and the financial resources required for the work ( Art. 18).

National prevention mechanism in Germany

In Germany, the National Agency for the Prevention of Torture was re-established as a national preventive mechanism after ratification of the OPCAT. To this end, the Federal Ministry of Justice created a federal agency for the prevention of torture with voluntary members by organizational decree of November 20, 2008, which visits all places of imprisonment within the jurisdiction of the federal government. The countries established by international treaty of 25 June 2009 also honorary occupied joint country Commission, which is responsible for responsible end places for all of them. According to an administrative agreement, the Federal Agency and the Joint Commission work together as the National Agency for the Prevention of Torture. They are supported by a joint full-time office located at the Central Criminological Office in Wiesbaden .

National prevention mechanism in Austria

In Austria, the Ombudsman Board has been responsible for the protection and promotion of human rights since July 1, 2012. Together with six regional commissions, institutions are monitored in which personal freedom is or may be withdrawn or restricted, for example in prisons or nursing homes. The control also extends to facilities and programs for people with disabilities and the administration is observed as executive power when direct command and coercive power is exercised, for example during deportations, demonstrations and police operations. At its core, it is about identifying risk factors for human rights violations early on and eliminating them.

In addition to the preventive control, anyone can expressly complain to the Ombudsman Office for alleged violations of human rights.

The constitutional mandate to protect human rights as a “National Preventive Mechanism” (NPM) is based on two important legal acts of the United Nations: on the one hand the UN Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) and on the other hand the UN Disability Rights Convention.

The Ombudsman presents its current audit results in its reports to the National Council and the state parliaments. It is also obliged to report annually to the UN Subcommittee on the Prevention of Torture on its work as the National Preventive Mechanism for the Prevention of Torture.

The Commissions of the Ombudsman Board

In order to be able to implement the tasks as an NPM, the Ombudsman Board set up six regional commissions. The expert commissions have unrestricted access to all facilities and receive all information and documents required to carry out their mandate. They also have extensive access to medical data from prisoners in police detention centers. At their request, the commissions can hold confidential talks with detainees or people with disabilities.

In their responsible work, the commissions orientate themselves to the main test points specified by the Ombudsman Board. They report directly to the Ombudsman's Office on their visits and reviews and include assessments of human rights violations and recommendations on how to prevent them. If the Ombudsman Board comes to different conclusions, the commissions are entitled to add appropriate remarks to the reports of the Ombudsman Board.

Each commission consists of a management team and members who are appointed by the Ombudsman Board in accordance with international requirements, taking gender parity into account. They are multiethnic and multidisciplinary. There are six regional commissions nationwide with at least 42 part-time members.

literature

  • German Institute for Human Rights (Hrsg.): Prevention of torture and mistreatment in Germany . Baden-Baden: Nomos 2007.

Web links

Individual evidence

  1. ↑ http://www.ohchr.org/EN/HRBodies/Pages/ElectionsofTreatyBodiesMembers.aspx Regulations on the electoral process
  2. ↑ http://www.ohchr.org/EN/HRBodies/OPCAT/Pages/Membership.aspx Members of the SPT
  3. ↑ OPCAT implementation law [1]
  4. ↑ Preventive human rights control by the Ombudsman Board [2]