How does it work?
1. What is the Optional Protocol? On 18 December 2002, the UN General assembly adopted a new mechanism to prevent torture: the Optional Protocol to the Convention against Torture (OPCAT). The aim of the OPCAT is to prevent torture and other forms of ill-treatment by establishing a system of regular visits to places of detention or wherever people are deprived of their liberties and will be carried out by independent international and national bodies composed of experts. States who have ratified the OPCAT will be obliged to allow these bodies to visit any detention center or prison. The experts from the international and national bodies will have the right to ask and receive information from the states parties regarding those detained or imprisoned. They can require the states to pursue their recommendations subsequent to their visits. These preventive international and local bodies shall have the duty to advise and assist the states parties to be able to resolve the problems that were called to their attention. The OPCAT is radically different form those mechanisms already existing within the UN system. Rather than responding to incidences of torture after they have been committed, it seeks to prevent torture, horrid detention conditions, and ill and degrading treatment.
2. Who can ratify? Only States that have ratified or acceded to the UN Convention against Torture (CAT) can ratify or accede to the OPCAT. The Philippines is a State party to the CAT to which it ratified in 1986 and acceded to in 1987. Upon its adoption by the UN General Assembly, treaties like the OPCAT are opened for signature to the United Nations members. State members who have signed can then opt to ratify. 20 ratifications of UN member states are required for the OPCAT to enter into force. When the required number of ratifications is reached, the member state parties will then accede to the treaty and are subsequently bound by the agreements contained in the provisions of the treaty. The UN Committee against Torture will have the duty to provide for assistance to the State parties so that they can keep up with the required standards that were agreed upon. As stated above, the required number of ratifications for the Optional Protocol to the Convention against Torture to enter into force as a mechanism is 20. Right now, there are 17 countries who have ratified it and 49 others are signatories.
3. Why is it needed? Despite the fact that torture and other forms of ill treatment are prohibited under international law, these abuses still continue to be widespread here in the Philippines. Persons deprived of their liberty are most at risk, as they are cut off from the outside world and solely dependent upon the authorities for their most basic needs and rights. The OPCAT offers a novel approach as no other international treaty provides for concrete steps to prevent these violations from occuring within the places of detention. Besides working towards the enactment of an anti-torture law to criminalize the act of torture, the need to address it through other means is also needed. By also establishing a monitoring system alongside a prohibitive law, the common use of torture to circumvent humane procedures can be better restricted if not totally avoided.
4. How do visits prevent torture and other forms of ill-treatment? Practical experience has shown that visits to places of detention are one of the most effective means to prevent torture and to improve conditions of detention. Visits not only have a deterrent effect but they also enable experts to examine, at first hand, the treatment of persons deprived of their liberty and their conditions of detention. Many problems stem from inadequate systems which can be improved through regular monitoring. The visiting experts are able to make recommendations for improvements and to establish constructive dialogue with the authorities concerned in order to help them resolve problems observed.
5. How will the Optional Protocol work? Now that over 20 states had ratified the OPCAT, it has entered into force. The UNCAT's Sub-committee has its 10 elected expert representatives that will implement the drawn up procedures and carry out the visits. A system has now been established to conduct regular visits to places of detention where persons are deprived of their liberty. These visits will be carried out by the complementary international (the Sub-committee on Prevention) and national (National Preventive Mechanisms)independent bodies made up of experts in fields relevant to the treatment of individuals deprived of thier liberty. Member State parties will then have the obligation to accept unannounced visits to places of detention by these bodies. The OPCAT is groundbreaking, because whereas some of the existing mechanisms act after torture has occurred, it would intervene beforehand to prevent torture. Furthermore, while several of the existing mechanisms publicly condemn states in a climate of confrontation, the new system would assist states through a confidential process of open dialogue and cooperation. The OPCAT is also unique in prescribing a complementary inter-relationship between preventive efforts at the international and national level, which aim to ensure the effective and full implementation of international standards at the local level.
6. What will the International and National visiting bodies do? Both the international and national bodies will conduct regular visits to any place of detention and can hold private interviews with persons of their choice. Following their visits, these bodies will make recommendations for improvements in the treatment and conditions of detention of persons deprived of their liberty. In order to establish an atmosphere of cooperation, the report of the Sub-Committee will be confidential, unless the state party gives its consent for the publication of the report or fails to co-operate with the visiting experts. Confidentiality is not a requirement for the national visiting bodies. These bodies will then continue to work with the relevant authorities on the implementation of their recommendations. They will also work closely together, exchanging information and advice.
7. The International Arm of the OPCAT - The UN Sub-Committee on Prevention The first body within this system of visits is a new international body, a “Sub-Committee” to the UN Committee against Torture. This body consists of ten members which were elected by State parties. This body is called the Subcommittee on Prevention and its members is composed of 10 independent, multi-disciplinary experts with high moral character, having proven professional experience in the field of administration of justice, in particular criminal law, prison or police administration, or in the various fields relevant to the treatment of persons deprived of their liberty. The 10 members of the Sub-Committee on Prevention have the mandate to conduct regular visits to places of detention in all States Parties and make recommendations to them regarding the protection of persons deprived of their liberty. The Sub-Committee on Prevention may therefore visit prisons, police stations, detention centers, psychiatric institutions (where persons have been hospitalized on involuntary basis), detention areas in military bases, detention centers for asylum seekers and immigration centers, centers for juveniles, place of administrative detention. The subcommittee will also advise and assist the State Parties in the establishment of the National Preventive Mechanisms, and maintain direct contact with the National Preventive Mechanisms and offer them training and technical advice. List of Sub-Committee Members elected on 18 December 2007 · Ms. Silvia Casale * ( United Kingdom ), · Mr. Mario Luis Coriolano* (Argentina), · Ms.Marija Definis Gojanovic** ( Croatia ), · Mr. Zdenek Hajek* ( Czech Republic ), · Mr. Zbigniew Lasocik* ( Poland ), · Mr. Hans Draminsky Petersen** ( Denmark ), · Mr. Victor Manuel Rodriguez Rescia* (Costa Rica), · Mr. Miguel Sarre Iguiniz** (Mexico), · Mr. Wilder Tayler Souto** ( Uruguay ), · Mr. Leopoldo Torres Boursault** ( Spain )
The second part of this system will be visits conducted by national bodies. When the OPCAT enters into force, within one year of ratifying or acceding to it, state parties must have in place one or several national preventive mechanisms. No particular type of national mechanism is specified, therefore Human Rights Commissions, Ombudsmen, Parliamentary Commissions, or NGO’s could be designated to carry out this function. Article 3 of the OPCAT states that: Each State party is required to set up, designate, maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment. Even if the states are free to choose whatever mechanism they find most appropriate in their particular context, this body or bodies must, however, fulfill certain criteria (guarantees) in order to ensure non-interference from the state, independence capabilities and professional knowledge, gender balance and adequate representation of ethnic and marginalized groups. In order to ensure the independent functioning of the National Preventive Mechanisms, the State Parties shall give due consideration to the principles relating to the status of national institutions for the promotion and protection of human rights. Once established, the national preventive mechanisms will have the following powers:
9. What places will be visited? Places of detention are broadly defined by the OPCAT and should include: police stations; security force stations, all pre-trial centers; remand prisons; prisons for sentenced persons; centers for juveniles; immigration centers; transit zones at international ports; centers for detained asylum seekers; psychiatric institutions and places of administrative detention.
10. Who will benefit from the ratification of the OPCAT in the Philippines? The universal visits done by the dual visiting instruments, the Subcommittee on Prevention and the National Preventive Mechanisms will strengthen the protection of persons deprived of their liberty by non-judicial means. Visitations being one of the most effective means to prevent torture and to improve conditions of detention, all those who are in custody of authorities, in prison, in places of detention and all others deprived of their liberty will have a better chance to avoid being tortured and can hope for improved conditions in the facilities where they are being held. Since the experts from the international and national monitoring bodies will continue to work and assist the State parties authorities on the accomplishment of their recommendations after a visit, systems can now more readily be improved, creating a better environment for both the prisoners and the ones in charge. State authorities and those responsible for the care of those held in prisons and detention centers will have a possibility to advance their expertise and professionalism in their fields and encourage a sense of justice amongst their subordinates. When the relationship of trust and cooperation is well established between the visiting experts, the national preventive mechanisms, and state authorities, better standards in the administration of justice, police and military administration and in the prevention of torture can come into place, Through institutionalizing a good system to monitor and prevent torture, a healthy exchange and systematization of knowledge between these parties can lead to the progressive altering of State structures and practices. Since most violations of human rights come about as a consequence of state actions, prevention requires an intrusion into the laws, legal system, and the system of power and control of the State. The OPCAT is designed to bring the State to actively engage in the prevention of torture. Its ratification in the Philippines can help bring about profound changes in the system which will benefit us all.
11. What needs to be done and how you can help in the campaign to ratify the OPCAT As of March 20, 2006, there are 17 ratifications and 50 signatures worldwide. The Optional Protocol requires 20 ratifications to enter into force. The Philippines is a State Party to the Convention against Torture and like the other countries should seriously consider ratifying the OPCAT as soon as possible. The OPCAT needs to be deliberated and passed by the Philippine Senate and Congress and our President for it to be ratified. Also, many Government Agencies have to become informed of its importance and endorse it. With your help, we can work together towards the eradication of the use of torture by promoting the OPCAT to others. Many are needed to voice out its necessity and put pressure to those who have the power to decide on its ratification. We, as a country where the use of torture is commonplace, need to utilize all available instruments to uphold our citizens’ right to be free from torture. National Institutions, Government Agencies, Local Government, Prison and detention center administrators, NGO’s, and others promoting the human rights of people deprived of their liberty need to be informed of their potential role as national preventive mechanisms under the OPCAT National debates and a nationwide awareness campaign on the prevention of torture and the OPCAT should be encouraged in the light of its adoption. Those in government, administrators of prisons and detention centers, and civil society should work together to promote and be engaged in the ratification and implementation process of the OPCAT.
12. Where can you ask for assistance if you want to promote or know more about the OPCAT?
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