The Legislative Yuan is adopting legislation on the implementation of two UN human rights documents: The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and its Optional Protocol.
Based on the protocol’s implementation, Taiwan should establish a so-called national preventive mechanism.
This short article aims to briefly introduce the issue and contribute to a public discussion on the mechanism’s mandate and its structure.
Torture and other cruel, inhuman or degrading treatment or punishment represent the gravest crimes against humanity. Such acts that attack the human dignity — core of all human rights and freedoms — are never justifiable whatsoever, whether in a state of war or threat of war, internal political instability or any other public emergency.
Furthermore, prohibition of torture is one of the basic principles of customary international law.
The absolute and non-derogable nature of torture and other forms of ill-treatment imposes on a state a negative obligation, ie a commitment not to subject any person to torture and second, and a positive obligation to actively protect individuals from torture committed or threatened by other persons.
To meet these obligations, a state should adopt a variety of measures as made clear in Article 2 of the convention: “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”
The convention was adopted by the UN General Assembly and entered into force on June 26, 1987, and to this day, it has been ratified by 165 states.
In 2006, the international community reached the conviction that further measures were necessary in order to achieve the purposes of the convention and to strengthen the protection of persons deprived of their liberty against torture and other forms of ill-treatment.
Thus an important stage in torture prevention has been made, when the protocol entered into force and created a unique system of protection of persons restricted in their liberty by the cooperation of two monitoring bodies: the UN Subcommittee on Prevention of Torture, and the mechanism.
While the convention is a framework that imposes on a state a variety of negative and positive obligations, the protocol’s focus is narrower, as it requires the establishment of a preventive system of regular visits to places of detention by the mechanism as an independent expert watchdog.
The protocol stresses that preventing torture is a long-term continuous commitment that necessitates a constructive dialogue and close cooperation between the state or state actors, the mechanism and the subcommittee.
To date, the protocol has 89 state parties, of which 71 have already established their mechanisms.
The subcommittee stresses that a state has the freedom to decide whether it creates a completely new mechanism body, designates an existing institution, nominates a single institution or creates a multi-body model.
Thus, there exist eight different mechanism types among the 71 countries reflecting their particular political, social and historical background.
Nevertheless, the most common model is where the mechanism mandate is devoted to an ombudsman, or public defender of rights.
However, it should be stressed that designating an existing institution with the mechanism mandate does not mean that a state meets the protocol’s obligation to create a fully functioning mechanism. This is just the first step and a variety of legislative and structural changes must follow.
When a state intends to ratify the protocol, a broad public discussion should be launched where all possible mechanism models are discussed, and competencies and powers of the mechanism vigilantly analyzed.
First, legislators should be aware that the mechanism should have the power to carry out independent preventive regular visits to places where people are or might be restricted in their liberty, eg, prisons, police stations, psychiatric hospitals, private retirement homes, etc. (Article 4 of the protocol) and has unlimited access to all premises, people and information (Article 20).
Second, the preventive mandate of the mechanism should be distinguished from the reactive mandate of other existing control bodies, such as the ombudsman and other human rights institutions.
The mechanism should not deal with individual complaints, ie, act reactively, but carry out in-depth thematic or general preventive visits focused on all community in detention (Article 1).
Third, the mechanism should be composed of experts from a various field of expertise — lawyers, physicians, psychologists, nurses, interpreters, social workers, etc. (Article 18, paragraph 2).
Fourth, the mechanism should strive to establish and maintain a constructive dialogue with visited facilities and state authorities (Article 22), which means that it should act as a partner, and not as an authoritative investigator.
Fifth, the mechanism should have the right to issue recommendations to address revealed shortcomings, as well as a public annual report on its activities (Article 19b).
Sixth, to perform its mandate effectively, the mechanism should enjoy organizational and functional independence (Article 18, paragraph 1).
Seventh, the mechanism should have the competence to submit proposals and observations concerning existing or draft legislation (Article 19c).
Eighth, the mechanism should not be forced to reveal any confidential information that it collects during the course of monitoring (Article 21, paragraph 2).
Despite the difficulties and challenges in establishing a fully functioning mechanism, the international community does not leave member states in the lurch and provides them with a considerable number of guidelines, tools and methodologies.
Most of the materials are available online on the Web sites of the subcommittee and the Association for the Prevention of Torture.
The mechanism’s preventive role and focus, strengthened by well-thought out strategies and expert commitments, have, unlike traditional control bodies, prerequisites to significantly improve the living conditions and treatment of persons in places of detention, and to prevent torture and other forms of ill-treatment.
To reach this goal, it is necessary to be aware of the specific mechanism mandate, allocate sufficient human, financial and logistic resources and perform necessary legislative and structural changes to ensure its effective functioning.
Last but not least, the mechanism’s efficiency depends, to a considerable extent, on the ombudsman, as well on the mechanism’s position within the ombudsman’s office.
Although the establishment process might be demanding, a well-functioning mechanism would be a significant contribution to human rights protection and effective torture prevention, as it is apparent from the other nations that set off their protocol journey.
Pavel Doubek is a postdoctoral fellow at the Taiwan Foundation for Democracy, focusing on the introduction of the national preventive mechanism into Taiwanese law. The content of his research does not reflect the views of the foundation.
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