The Optional Protocol to the UN Torture Convention (OPCAT) is unique amongst the UN human rights treaties and their Optional Protocols. Unique as it is not normative because it does not set out a new right which would be additional to those elaborated in the Torture Convention itself. Nor is it purely procedural as it does not set out, for example, a mechanism for complaints system to reinforce the rights enshrined in the Torture Convention. The OPCAT is unique as it is the only one among the UN human rights treaties which adopts a purely preventive stance by laying down mechanics for ensuring implementation of the obligation to prevent torture encapsulated in Article 2 of the Torture Convention. This torture prevention architecture is premised on the central conviction that regular visits by independent bodies to places of deprivation of liberty would minimise the risk of torture and other ill-treatment and thus aid the implementation of the obligation to prevent the occurrence of torture. The fundamental building-bricks of this OPCAT torture prevention system rests on the shoulders of two further unique features of the treaty: (1) the Subcommittee on Prevention of Torture (SPT), a treaty body established in accordance with the OPCAT; and (2) National Preventive Mechanisms (NPMs) which all OPCAT States parties are obliged to establish within a year of ratification. These bodies, one international and the other domestic, are to undertake regular visits without prior notice and/or authorisation from the States to places where people are deprived of their liberty with the ultimate aim of preventing occurrences of torture.
Since coming into force in June 2006, the OPCAT now has 94 State parties, and nearly 80 NPMs have been established worldwide. The SPT is the largest UN treaty body, composed of 25 members, and in nearly two decades of work, has carried out over 100 visits to the States parties. One can also imagine that the visits by the NPMs worldwide are running into ten of thousands. While these numbers are, of course, encouraging, the effectiveness of such visits is a different matter and rests on a few crucial factors, which first and foremost include the independence of these NPMs and their professional capacities but also their ability to freely access all places of deprivation of liberty. To this end, Article 4 of OPCAT defines such places as “any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence”, noting that “deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority”. This is a rather broad definition, one which makes a lot of sense if it is to really aid the effective implementation of the obligation to prevent torture. But equally it probably comes as no surprise that the practical implementation of this provisions has been a challenge since many States parties have sought to curb, either through domestic legislation or in practice, the mandates of their respective NPMs by adopting restrictive interpretations of Article 4 of OPCAT so as to limit the types of facilities that the NPMs (and sometimes also the SPT) can visit. Such approaches, of course, have negative and potentially even detrimental consequences for the torture prevention system of OPCAT, which the SPT has clearly been acutely aware of. This is evidenced by the adoption of its first (and thus far- the only) General Comment No. 1 (2024) on article 4 of the Optional Protocol (places of deprivation of liberty) in June 2024. This first General Comment by the SPT is truly groundbreaking and there are three key aspects that ought to be highlighted:
1) It is the first time that a UN human rights treaty body has examined in such a great detail the wide variety of circumstances which may give rise to deprivation of liberty of a person. While other UN treaty bodies and Special Procedures have alluded that “deprivation of liberty” occurs in circumstances other than criminal justice contexts, including prisons and police stations and include centres for migrants, social care settings and psychiatric hospitals, the SPT’s first General Comment clearly spells it out that Article 4 of OPCAT encompasses deprivation of liberty which can occur both in public or private settings and both entail State responsibility (paras 27-28); all places which fall under jurisdiction or control of the State are covered by article 4 of OPCAT (paras 29-39); actual as well as potential places are covered too (paras 40-41); the ability of the person to leave at will is the determining factor in qualifying a place as one of “deprivation of liberty” (paras 42-45) and deprivation of liberty relates to a situation in which a State exercises or might be expected to exercise a regulatory function by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence (paras 46-50). Consequently, the SPT states that Article 4 of OPCAT extends to such places as adult prisons; pretrial detention centres; juvenile or socio-educational detention centres; police or other law enforcement units; mental health facilities; nursing homes; orphanages; residences for children and adolescents without parental care or who have suffered neglect or abuse; centres for persons with disabilities; migrant detention centres, such as first reception centres for adults and unaccompanied children and detention and removal centres for migrants; transit zones at international borders; military compounds; vehicles, ships and aeroplanes; coronavirus disease (COVID-19) hotels and other formal places of compulsory quarantine and isolation, or home confinement; rehabilitation and treatment centres for persons with drug use disorders; police training schools; State security service detention facilities; boarding schools and religious schools (para 53). The SPT also notes the various traditional forms of justice and treatment prevalent globally that lead or may lead to individuals being deprived of their liberty, making it clear that these would fall under Article 4 of OPCAT too (para 50). Interestingly, the SPT carefully but clearly alludes to the impact of the modern technologies and the emergence of digital, non-physical spaces and how these may impact the personal liberty, hinting that such also may give rise to “deprivation of liberty” within the meaning of Article 4 of OPCAT (para 54). Finally, it is also made clear that there is no exhaustive list of places of deprivation of liberty nor that it is useful to have such (paras 51-53).
2) “Deprivation of liberty” can occur in a certain setting, a place or a facility, but it can also be a situation which may change over time. This approach of the SPT to “deprivation of liberty” being also a situation means that, for example, public demonstrations as well as other gatherings where such police practices as kettling are or may be carried out also fall under the wide remit of Article 4 of OPCAT (para 53). Situations of house arrest (para 51) as well as instances of police arrests on public roads or by private guards in shopping malls, for example (para 52) are also covered. Equally covered are instances of State’s failure to provide the necessary arrangements for supported living to persons with psycho-social disabilities as in such cases, “although there may be no legal or administrative order confining such persons to a certain facility, the lack of support compels them to remain in living situations that deprive them of their liberty and may subject them to harmful practices” (para 57).
3) The conclusion as to whether a certain place/situation amounts to “deprivation of liberty” rests with the autonomous decision of the NPMs and SPT rather than the State authorities, at least as far as the obligations under OPCAT are concerned. To this end, the SPT makes it clear that “the concept of places of deprivation of liberty is not fixed or limited. It evolves with time, allowing for the inclusion of novel situations and circumstances of deprivation of liberty that may arise in new contexts. Equally, the inclusion of places where persons may be deprived of their liberty signifies the importance of the autonomous decision-making in this regard by the Subcommittee and national preventive mechanisms” (para 59).
What all this means for the States parties to OPCAT, NPMs and other stakeholders is that finally, some two decades since commencing its mandate, the SPT as the custodian of the OPCAT, has set out a clear and authoritative statement of the truly wide reach of Article 4 of OPCAT. Since this provision is fundamental to defining the scope of the preventive visiting mandate of the NPMs worldwide (and of course also of the SPT), this first General Comment is a key safeguard for the torture prevention architecture of OPCAT. What will be interesting to see is the practical impact of this far-reaching General Comment upon the mandates of the NPMs and how these national torture prevention watchdogs will be able to cope with the vastness of their preventive mandates, especially in the light of the funding cuts of so many national human rights institutions. But that is topic for another piece.