The present contribution provides some preliminary considerations concerning the compatibility between the EU independent national mechanisms (INMs) to be set up under EU regulation 2024/1356 and the National Preventive Mechanisms (NPMs) set up under the 2002 UN Optional Protocol for the Prevention of Torture. Should existing NPMs be tasked with the EU monitoring mandate envisaged under the regulation, there are some matters pertaining to the scope of the places subject to monitoring and the mechanisms’ financial independence that require clarification to enhance synergies and address possible tensions between the two mandates and ultimately the protection of migrants’ rights at the EU borders.
The Independent National Mechanisms under EU Regulation 2024/1356
The 2024 EU pact on migration and asylum introduced a new obligation under Article 10 of the Screening Regulation (Regulation (EU) 2024/1356) and Article 43(4) of the Asylum Procedure Regulation (Regulation (EU) 2024/1348) requiring Member States (MS) to have independent national mechanisms (INMs) to monitor fundamental rights compliance during the screening of new arrivals and when assessing asylum claims at the EU external borders. The regulations will enter into force by mid-2026.
Article 10 of the 2024/1356 regulations provides that ‘National Ombudspersons and national human rights institutions (NHRIs), including national preventive mechanisms established under the UN Optional Protocol for the Prevention of Torture (OPCAT), shall participate in the operation of the independent monitoring mechanism and may be appointed to carry out all or part of the tasks of the independent monitoring mechanism’.
OPCAT National Preventive Mechanisms
OPCAT national preventive mechanisms (NPMs) are independent monitoring bodies tasked with carrying out regular unannounced visits to places of deprivation of liberty for the purposes of preventing torture and other forms of ill-treatment (articles 3 and 4 of the UN Optional Protocol for the Prevention of Torture (OPCAT)). National Human Rights Institutions (NHRIs) are domestic monitoring bodies such as Ombudsmen, independent of government, with a mandate to protect and promote human rights more generally at the national level. NHRIs are internationally accredited on the basis of their compliance with the UN Paris Principles. Some European NHRI double up as an OPCAT NPM, for example Bulgaria, Greece and Spain have entrusted the OPCAT mandate to their respective Ombudsman. It is worthwhile noting that all European Union countries have designated or set up a NPM under the United Nations treaty on the prevention of torture (OPCAT) as well as NHRIs.
It is therefore understandable that the regulation envisages that these existing mechanisms might participate in or take on monitoring fundamental rights compliance during the screening and assessment of asylum claims of new arrivals at the EU external borders through on-the-spot and random visits to ‘all relevant locations, including reception and detention facilities’. Existing independent NPMs could contribute their expertise and knowledge of best practices as well as of challenges experienced during their work monitoring places of deprivation of liberty, including migrant detention settings.
In whichever way existing human rights mechanisms may engage with the INMs’ mandate (either by participating in or taking on the mandate), the extent and consequences of the institutional and/or operational overlap need consideration. Arguably, the regulation is deliberately vague on this to allow sufficient flexibility for a practical and context-sensitive implementation of the obligation. However, there are important differences between the ‘EU sponsored’ INMs and OPCAT NPMs, which could affect their monitoring work and, ultimately, the protection of migrants’ rights at the EU borders. This blog entry discusses some potential synergies, as well as tensions that may arise, should existing NPMs be tasked with the INMs mandate.
‘Settings’ subject to monitoring
Article 4 (1) OPCAT provides for a system of regular, unannounced visits to ‘any places of deprivation of liberty’ to be carried out by the UN Subcommittee for the Prevention of Torture (SPT) and the NPMs, established or designated under the OPCAT, for the purposes of preventing torture and other forms of ill-treatment.
According to article 4 (2) OPCAT ‘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’. The SPT, the supranational body monitoring the OPCAT, has interpreted ‘a place of deprivation of liberty’ very broadly for the purposes of the OPCAT (General Comment 1/2024) in line with its own practice, that of NPMs, as well as other torture preventive mechanisms such as the European Committee for the Prevention of Torture. Places of deprivation of liberty subject to OPCAT NPMs monitoring may include a wide range of settings such as prisons, psychiatric wards, orphanages, and care homes. Importantly, according to the SPT, factors such as the duration of the deprivation of liberty, the nature of the facility and the status accorded to it in the domestic legal system is not necessarily relevant for the determination of whether a place constitutes a place of deprivation of liberty for the purposes of the prevention of torture (GC 1/20204 para 41). A factual assessment of each case might be needed in order for ‘a place of deprivation of liberty’ to be understood comprehensively, in accordance with the object and purpose of the Optional Protocol. In the context of migration, relevant places of deprivation of liberty subject to OPCAT monitoring may include migrant detention centres, as well as transit zones at international borders; military compounds; vehicles, ships and aeroplanes; and any gatherings where law enforcement containment tactics are or may be carried out (GC1/2024 para 53). The list is not exhaustive and indicates a rather extensive scope of settings subject to OPCAT NPMs monitoring.
The EU regulation indicates that monitoring visits may apply to ‘all relevant locations where the screenings take place’ (article 10.2). The scope of places subject to monitoring is limited to those where screening activities occur. The Fundamental Rights Agency (FRA), which is tasked with providing guidance to MS on the establishment of a monitoring mechanism and its independent functioning (article 10.2 R/2024/1356), has sought to broaden the monitoring to ‘all activities relating to third country nationals subject to screening, regardless of where the screening occurs’. The final draft of the regulation and its drafting history also suggests that the EU independent mechanism’s competence excludes border surveillance activities, i.e. pushbacks, and does not extend to the return border procedures either. The FRA in its guidance (2.3) has rightly, if cautiously, suggested that where appropriate and advisable, Member States ‘may decide’ to extend the INM’s monitoring to cover related border management activities, including border surveillance and/or the return border procedure. If existing NPMs operating as INM were to be tasked with carrying out visits in relation only to screening, the exclusion of other related and seamless practices would be difficult to reconcile with their OPCAT mandate. The exclusion would also be at odds with the torture preventive standards and practices developed by international human rights monitoring mechanisms (see e.g. CPT’s 2022 report on push-back and forced removals and its latest report on visit to Italy) and national mechanisms (some of which already monitor forced returns under the EU ‘return directive’, see for example the Greek Ombudsman).
Given this state of affairs, an obvious question arises: in case of a disagreement surrounding the scope of the monitoring activities, which mandate should then prevail? Would Member States have to choose between their EU law obligations and their OPCAT international commitments? According to the doctrine of state responsibility, EU member states have to comply in good faith with their OPCAT obligations. To ensure respect for the latter, the national jurisdictions may decide that the more restrictive EU mandate must be disapplied (though this might be unlikely in light of the current political climate) to the extent that compliance with these human rights obligations is required. Conversely, to observe their obligations under EU law, states may have to ignore the OPCAT obligations to prioritize EU law. However, the effect would be to lower the levels of protection for migrants’ rights. The dissonance between the two mandates under the two separate legal regimes could be solved through the duty of ‘harmonious interpretation’ according to which the European Union must respect international law in the exercise of its powers, and therefore EU acts must be interpreted, and their scope delimited, in the light of the relevant rules of the international law (Case C-286/90, para 9; Case C-366/10, para 7). This interpretative duty arises not only in relation to agreements concluded by the EU but also in relation to agreements to which member states are parties (Case C-308/06). It could therefore require interpreting article 10 of the screening regulation in conformity with MS obligations under the OPCAT, explicitly acknowledged in the preamble of the regulation. However, it remains unclear whether this would be the case given the fact that the intensity of the interpretative duty varies and is both context and rule specific (Tridimas and Konstantinidis 2024), and in light of the EU inconsistent approach to international human rights treaties (Butler & De Schutter 2008).
Financial independence of NPM/INMs
According to article 18 OPCAT, state parties have to make available the necessary resources for an independent and fully functioning NPM. The Subcommittee for the Prevention of Torture has indicated that to ensure institutional stability, operational and functional independence, financial autonomy is a fundamental requirement (SPT Guidelines on NPMs, CAT/ OP/ 12/ 5). In its mission reports, the SPT has noted that operating on a limited budget makes it difficult for the mechanism to fulfil effectively its mandate to prevent torture and ill-treatment (e.g. see SPT report on visit to Italy, the SPT visit to Spain). Also NPMs must be in a position to freely determine how to use the resources available to them in order to establish a work programme of a regular system of visits to all places of deprivation of liberty and to ensure sufficient staffing levels and professional expertise (CAT/ OP/ 12/ 5).
Article 10.4 of the EU Regulation (2024/1356), requires member states to provide INMs with appropriate financial means. The obligation could bolster the independence and autonomy of the NPM/INM and enhance the NPM’s monitoring work in terms of resources available and their ability to source technical expertise, especially where this might be an issue. The NPM’s broader torture preventive mandate could also be strengthened provided that the funding is not strictly earmarked against monitoring of screening activities and/or migration detention settings, which could create an incentive for under-resourced NPMs acting as an INM to prioritize the latter over other settings of deprivation of liberty.
The screening regulation could also prove a novel way to enforce those OPCAT obligations pertaining to the NPMs’ functional and financial independence given the EU’s regulatory force. Indeed, as for other UN human rights treaties, the legal remedies available are notoriously limited where a state party to the OPCAT fails to give effect to its treaty obligations. In contrast, the obligations under EU regulations are directly applicable in member states, and a state’s failure to abide by the regulation would be subject to the EU’s robust enforcement procedures.
Conclusion
The use of existing OPCAT national preventive mechanisms for the purposes of EU regulation 2024/1356 may be a practical way of ensuring that existing human rights monitoring knowledge and expertise is effectively deployed at the EU borders to enhance the protection of migrants’ rights. However, the potential tensions surrounding the scope of the activities and the financial independence and autonomy of the monitoring mechanisms add to the urgency of the need to clarify the relationship between EU and international human rights instruments and the extent to which EU law may be ‘harmoniously’ reconciled with international human rights law.
