The role and scope of OPCAT in protecting those deprived of liberty: a critical analysis of the New Zealand experience

According to the Optional Protocol to the Convention against Torture (OPCAT), national preventive mechanisms (NPMs) are required to conduct regular visits to detention centres and provide recommendations to authorities for preventing torture. Following its ratification of OPCAT, Nigeria established its NPM, known as the National Committee Against Torture (NCAT), in 2009 and enacted the Anti-Torture Act of 2017, which prohibits the use of torture in Nigeria without any exceptions. To comply with OPCAT requirements and create an effective NPM, Nigeria dissolved the 2009 NCAT and inaugurated a new NCAT in 2022. In 2024, the National Human Rights Commission (NHRC) was designated as the NPM, with a specialised department tasked with preventing torture. This raises an important question: If the previous two NCATs as an NPM could not comply with OPCAT requirements, how could we be sure that the NHRC, with its specialised department, will effectively prevent torture as prescribed by OPCAT? To address this question, this article investigates the previous NCATs’ compliance with OPCAT requirements. It then analyses the NHRC as the newly designated NPM and interrogates its ability to meet OPCAT standards. The article concludes that several factors, such as the lack of adequate legal documentation establishing the 2009 and 2022 NCATs, insufficient resources, lack of functional independence, and limited funding, played a role in non-compliance. However, the NHRC already has an established structure and the capability to investigate human rights violations, albeit not with a preventive focus. Therefore, while the designation of the NHRC as the NPM through the 2024 order, along with its specialised department, meets specific standards, the clarity regarding the structure, funding, and unannounced visitation of this specialised department remains uncertain.

ABSTRACTCivil society advocacy was an important factor contributing to Australia’s ratification of the Optional Protocol to the Convention Against Torture (OPCAT). OPCAT requires States to establish a domestic detention monitoring framework and receive occasional visits from a United Nations (UN) subcommittee, with the aim of preventing ill treatment in closed environments. But what role can and should civil society play post ratification? Civil society has significant experience and expertise working in closed environments. This includes through work providing support, services and programmes for persons deprived of their liberty, and advocating for rights protection or seeking remedies or redress for rights violations. In particular, civil society can bring expertise about vulnerable groups and their experiences in detention, which can enhance the capacity of National Preventive Mechanisms (NPMs) to prevent ill treatment. With 88 OPCAT State Parties at the time of writing, there are many international examples of civil society participation in the OPCAT framework, including civil society’s direct involvement in the NPM. To realise OPCAT’s full potential, Australian Federal and State/Territory governments and potential NPMs must recognise civil society as an essential stakeholder. Civil society must also seize the opportunity that OPCAT presents to actively engage in OPCAT implementation.

The UK government ratified the United Nations Optional Protocol to the Convention Against Torture (OPCAT) in 2003. The OPCAT expressly requires that each state signatory should designate a National Preventive Mechanism (NPM). NPMs are national bodies that have the mandate to conduct regular visits to places of detention as well as make recommendations to the state to improve the situation of the persons deprived of their liberty. This article examines the international and national mechanisms for monitoring those deprived of their liberty in social care and psychiatric institutions, with particular reference to the current practice of the Care Quality Commission (CQC) monitoring body in England. The article examines the role of the UN Subcommittee on the Prevention of Torture (SPT) in monitoring at an international level and analyses the key elements for an effective national monitoring body (NPM) in this context, drawing on OPCAT, the recommendations of the SPT and the experience of the CQC and its predecessor, the Mental Health Act Commission. The article maintains that there is a need to safeguard procedural standards, such as a regular system of unannounced visits, operational and financial independence from the state, and a blend of appropriate expertise of visiting teams, including service user involvement. The article concludes that there is potential for the UN SPT and the Convention on the Rights of Persons with Disabilities (CRPD) Committee to develop guidance for monitoring bodies on implementing substantive standards, to ensure that the rights of patients detained in such settings are adequately protected and promoted.

ABSTRACTAustralian parliaments and courts have recognised that aged care facilities with closed units can be places of (civil) detention where patients/consumers are deprived of their liberty. Current monitoring of these places of detention is substandard and inadequate, as evidenced by the multiple federal and state inquiries into South Australia’s Oakden Older Persons Mental Health Service. The monitoring of closed aged care facilities needs urgent strengthening via the use of rigorous, human-rights-based standards. The urgency to improve the system of monitoring for this form of civil detention coincides with Australia’s 2017 ratification of the Optional Protocol to the Convention Against Torture (OPCAT). Australia’s commitment to OPCAT ushers in the establishment of National Preventive Mechanisms (NPMs) at the federal and state levels to strengthen monitoring of all places of detention in Australia. The Federal Government has indicated that Australia’s NPMs will initially focus on ‘primary’ places of detention. While closed aged care facilities are less traditional places of detention, this paper argues that the Federal Government, if it has learned anything from Oakden, should not delay strengthening its system of monitoring for these closed facilities.

Australia has recently ratified the Optional Protocol to the Convention against Torture (OPCAT) in order to improve the oversight of Australia’s prisons and detention centres, following major human rights violations exposed in them in 2016. Ratification offers an opportunity to appraise the effectiveness of monitoring and oversight in Australia, and the limitations of human rights protections in the Australian context. Australia’s prisons and youth detention centres are to be monitored by a network of independent inspecting bodies, which are likely to include existing Ombudsman and human rights bodies. The Office of the Commonwealth Ombudsman has the task of coordinating the new inspection bodies. This article reviews the existing protections of rights in Australia and considers the implications of ratification of OPCAT. The article concludes that implementation will require consideration of the effectiveness of the current bodies monitoring prisons and youth detention and their capacity to take on the role of preventing human rights violations, including their independence from government, as the states and territories decide on the establishment of their National Preventive Mechanisms. Implementation will also require an understanding of Australia’s historical ambivalence towards international human rights engagement and the impact of its federated system.

This article discusses the findings of an exploratory study involving semi-structured interviews with a sample of Mental Health Act (MHA) Commissioners. MHA Commissioners are employed by the Care Quality Commission (CQC) in England to monitor patients who are deprived of their liberty under the Mental Health Act 1983 (as amended by the Mental Health Act 2007). The study was designed to examine the impact of the transfer of responsibility of mental health detention monitoring in April 2009 from the Mental Health Act Commission to the CQC. The interviews were devised around the United Nations Optional Protocol to the Convention Against Torture (OPCAT) framework, which provides a useful benchmark for effective monitoring of deprivations of liberty to national inspection bodies (known as National Preventive Mechanisms), such as the CQC. Article 18 of the OPCAT advises a regular system of preventive visits by independent expert monitors, as well focussing on the promotion and protection of human rights. There is paucity of data on the work of MHA Commissioners in England to date and the author was unable to locate any previous studies on the subject. This study is timely and important as the CQC has been heavily criticised following the abuses uncovered at Winterbourne View care home and in the wake of the Mid Staffordshire Inquiry. Consequently, in 2012, the CQC undertook a major strategic review. The findings of this study suggest that, whilst there is some evidence of compliance, the CQC still has some way to go to effectively fulfil its monitoring duties in line with the provisions of the OPCAT.

Since the UN Optional Protocol to the Convention against Torture (OPCAT) came into force in 2006, the institutional landscape governing monitoring in European prisons has become increasingly complex. Already subject to regular monitoring visits by the European Committee for the Prevention of Torture (CPT), the majority of Council of Europe Member States are now also States Parties to the OPCAT. Accordingly, these States Parties may be subject to periodic visits by both the CPT and the UN Subcommittee for the Prevention of Torture (SPT). Under OPCAT, States Parties must also designate or establish their own independent National Preventive Mechanisms (NPMs), which undertake regular visits to all places of detention across the state. The result is that prisons in the majority of Council of Europe States now receive three levels of external scrutiny. The present chapter provides the background context, explaining the ECPT (European Convention for the Prevention of Torture) and OPCAT frameworks before exploring in greater detail the practical implications of this more complex area and in particular the relationships between the different monitoring bodies.

This chapter assesses implementation of the United Nations Optional Protocol to the Convention against Torture (OPCAT), and National Preventive Mechanism (NPM) designation processes and outcomes specifically, in Latin America. It shows that NPM designation processes have varied considerably in the region between countries depending on two sets of factors: (i) the degree of official and institutional resistance to designation of effective monitoring; and (ii) pre-existing capacity on the part of domestic structures tasked with monitoring duties. The empirical analysis of four country case studies (Argentina, Costa Rica, Peru and Mexico) demonstrate that even in situations of high levels of state resistance high-capacity candidate agencies can have a powerful, even decisive, impact. Interestingly, strong capacity can co-exist with resistance and can mitigate the pernicious effects of resistance to designation of potentially effective NPMs. These findings are important for any assessment of the potential of NPMs and monitoring of detention facilities more generally. Not only do they highlight key factors that shape domestic processes of treaty implementation during the post-ratification phase, but they also put the spotlight on the central political and institutional conditions that determine the effectiveness of monitoring institutions to protect the rights of persons deprived of liberty.

While independent penal monitoring has a history as old as the prison itself, the United States has historically lacked a robust system of monitoring at the federal, state and local level. Studies of the protection of human rights in prisons, and growing experience with robust monitoring systems, like those promoted by the United Nations through the Optional Protocol to the Convention Against Torture (OPCAT) and the Council of Europe highlight the peril for the United States which is not a signatory to OPCAT and has largely failed to create adequate independent systems of monitoring. When practiced routinely monitoring creates conditions that make extreme turns in penal policy less likely and protect human rights in prisons when populist pressures do build. That peril has come to pass as mass incarceration policies have made overcrowding ubiquitous and undiscovered violations of human rights on a mass scale almost inevitable. Instead of routine independent monitoring, the US has relied almost exclusively on judicial decrees, some of which involve independent monitoring. Unfortunately, while courts have great power to order reforms, and have under some conditions produced systemic prison reforms, the adversarial nature of American legalism makes standards based on litigation subject to enforcement resistance by correctional systems. Even this path, however, has been largely foreclosed by the Prison Litigation Reform Act of 1996 (PLRA) which largely cut off prisoner access to the federal courts just as prisons were entering the most perilous phase of overcrowding. Yet it is possible that today the growing human rights crisis in prison and the loss of confidence in correctional leadership to fix those problems is opening up space to place independent penal monitoring at the center of human rights protection in prisons. As the US carceral state enters profound crisis of legitimacy monitoring, in prisons and in analog form across the carceral state institutions, can play a crucial role in making correctional governance both more legitimate and more effective at promoting the human rights of prisoners.

The article examines the interrelationship between the constitutional identity of Lithuania and human rights protection. It is maintained that this interrelationship is apparent through two key aspects. First and foremost, respect for innate human rights in itself constitutes an inseparable part of the Lithuanian constitutional identity. Although the Constitutional Court has not so far directly expressed its position concerning the Lithuanian constitutional identity, the category of fundamental constitutional values, singled out by the Constitutional Court in its decision of 19 December 2012 and ruling of 24 January 2014, is very important in this respect. This category comprises values consolidated in Articles 1 and 18 of the Constitution, such as the independence of the state, democracy, the republican form of government, and the innate nature of human rights and freedoms. These values are indivisible from the Lithuanian constitutional identity, since creating and fostering an independent and democratic state that respects innate human rights is a Lithuanian historical and constitutional tradition. This tradition derives from the fundamental acts of the independence of the state, i.e. the Act of Independence of 16 February of 1918, the Declaration of the Council of the Movement of the Struggle for Freedom of Lithuania, which was adopted in 1949 at the time of the occupation, and the Act of 11 March 1990. This is reflected in the first democratic Constitution of the State of 1922 and is consolidated in the current Constitution. In view of the historically consistent obligation to respect innate human rights, it can be stated that the protection of these rights has become a particular metanorm, expressing the essence of the Constitution as a social contract and supreme law. This is especially evident from the doctrine formulated by the Constitution Court regarding the constitutionality of constitutional amendments in the rulings of 24 January 2014 and 11 July. In its ruling of 11 July 2014, the Constitutional Court held that it is not permitted to adopt any such constitutional amendments that would destroy the innate nature of human rights and freedoms, democracy, or the independence of the state. Consolidating the recognition of the innate nature of human rights, Article 18 of the Constitution formally belongs to those provisions of the Constitution that are subject to the general constitutional amendment procedure. However, taking into account an intrinsic relationship between democracy and respect for innate human rights, the Constitutional Court ranked the innate nature of human rights and freedoms, along with the independence of the state and democracy, as unamendable or “eternal” constitutional provisions. Thus, the innate nature of human rights, as a universal value constituting one of the fundamental elements of the Lithuanian constitutional identity, is under the highest-level constitutional protection. The second aspect revealing the interrelationship between the constitutional identity and human rights protection is the influence of other elements of the constitutional identity on the constitutional standards of human rights protection. In the formation of the official doctrine on human rights protection, the Constitutional Court places considerable importance on the idea of a democratic state under the rule of law. Other elements of the Lithuanian constitutional identity, in particular the principle of respect for international law and the principle of the geopolitical orientation of the state, are also particularly significant for the constitutional protection of human rights. The principle of respect for international law (pacta sunt servanda), as entrenched in Article 135(1) of the Constitution, implies the obligation of the State of Lithuania to comply with the norms of international treaties and customary international law, including the area of human rights. The principle of the geopolitical orientation of the state likewise guides towards openness to international human rights obligations. This principle implies Lithuania’s membership in the European Union and NATO, as well as the necessity to fulfil the related international obligations. The principle of geopolitical orientation, which is underpinned by common values shared by Lithuania with democratic Western states, similarly provides a value-based guidance in assuming international obligations and presumes the necessity to pay regard to the European standards of human rights protection and tendencies in their development. In this context, special importance also falls on the principle of an open civil society, which means that Lithuanian society is open to the international community and tendencies in the development of international law. The self-isolation of the state or disregard for international standards of human rights protection would be incompatible with the principle of an open civil society.

Civil society organizations are key actors in the promotion and protection of human rights in Nigeria and have participated in all the Universal Periodic Review (UPR) circles of the Government of Nigeria. The UPR is a first of its kind innovation adopted in 2006 by the Human Rights Council to complement the works of treaty bodies and involves the review on a periodic basis, the human rights records of all Member States of the United Nations. As a peer review process comprising three distinct stages and involving three major sources of information, this article exclusively ex-rays the UPR civil society report on the implementation of Nigeria’s international human rights obligations. As one of the three sources of information relied upon by the Human Rights Council in the Universal Periodic Review of the human rights record of the Government of Nigeria, this article, while focusing on the civil society information submitted to the Human Rights Council pursuant to the United Nations General Assembly Resolution 60/251 concludes that despite advances in the promotion and protection of human rights claimed in its national report to be made in the implementation of international human rights obligations, there are still, from civil society lens, plethora of issues and gaps in the implementation of Nigeria’s international human rights obligations.

Many international human rights instruments require States to introduce domestic measures in their territories to ensure the protection and promotion of human rights. This may be mainly attributed to the fact that States are generally held accountable or regarded as being responsible when international human rights obligations are not observed or given effect to. To achieve effective domestic protection of human rights it is important that the introduction of pro-human rights laws is accompanied by a network of complementary norms and mechanisms to co-ordinate or supervise the implementation of such laws. In order to ensure the domestic protection of human rights, the Constitution of Zimbabwe establishes the Zimbabwe Human Rights Commission (ZHRC). In accordance with the Principles Relating to the Status of National Institutions (The Paris Principles), the Constitution mandates the ZHRC with a primary role of promoting and protecting human rights at all levels of society. The aim of this article is to look at the prospects of and challenges to the ZHRC in its quest to promote and protect human rights.

The article examines approaches to the interaction of decisions of the Court of the European Union (CJEU) and international obligations in the field of human rights with the constitutional identity of states. Attention is focused on the concepts of “national identity” and “constitutional identity”, their relationship, and the introduction of the concept of “national identity” into the European legal order after the signing of the Maastricht Treaty (1993). Attention is drawn to the fact that the primary law of the EU does not contain the concept of “constitutional identity”, but this term is widely used in the decisions of the constitutional courts of several EU member states. In these decisions, the constitutional courts raised the issue of the protection of the constitution and constitutionality in the EU member state given the harmonization of legislation and/ or ultra vires decisions. The article notes that the concept of constitutional identity is broad, it covers the historical, political, cultural, and legal identity of the state, as well as the connection of national law with the international and autonomous legal order of the EU. The idea of constitutional identity is dynamic and constantly evolving due to the continuous development of the states themselves. The analysis of various approaches to this interaction based on the German Federal Constitutional Court, Hungarian Constitutional Court, and Italian Constitutional Court was carried out. It is noted that the interaction of CJEU rulings with constitutional identities is based on the principle of primacy of the EU law, and international human rights obligations are based on the conventional feature of the “obligation of uniform interpretation” and universal standards while ignoring the constitutional tradition of the states. It means that CJEU judgments have a higher legal force than national court judgments, while international human rights obligations should become precedents for subsequent national court judgments, not lowering the national standards of human rights protection.

- The legislative and operational measures recently adopted by Italy in order to prevent and repress clandestine immigration raise the problem of their consistency with Italy's international obligations conncerning the protection of human rights. With a view to assessing the actual terms of such a problem, contents and extent of the protection to be afforded to irregular migrants, under the international law of human rights, must be preliminarily determined. Considering the specific legal situation of Italy, in the light of its participation both to the European Convention of Human Rights and to the International Covenants on Human Rights, as well as to many other conventions dealing with the protection of human rights, it clearly turns out that Italy is internationally bound to respect and protect a number of basic rights of irregular migrants. Such rights include, at the very least, the right to life, the right not to be subjected to torture (or to cruel, inhuman, or degrading treatment), and the right not to be subjected to arbitrary arrest or detention. Respect for such rights also implies an absolute non-refoulement obligation, that is an obligation not to expel or return an irregular migrant to another State where there is an actual risk that his or her rights would be violated. Moreover, basic rights of clandestine immigrants include the right to family unity, the right not to be subjected to collective expulsion, and (closely linked with this latter right) the right to a fair and transparent procedure of expulsion or repatriation, implying a reasonable and objective examination of the particular case of each individual. Turning to economic, social and cultural rights, an internationally lawful treatment of irregular migrants requires compliance with international obligations protecting the right to health and medical care, the right to primary education, and some core labour rights. The principle of non discrimination plays obviously a crucial role in view of correctly implementing all these international obligations with respect to the specific situation of irregulars migrants. Lastly, special and stronger human rights protection is required when the irregular migrants are children, or victims of trafficking in persons. In the light of the international human rights obligations which are applicable to the peculiar situation of irregular migrants, some of the legislative and operational measures adopted by Italy to struggle against clandestine immigration seem indeed to be inconsistent not only with such obligations (and with the increasing international trend towards the "non criminalization" of clandestine immigrants by reason of their irregular position), but also - at least in part - with the EU legal standards provided for by the recent 2008/115/EC Directive on common standards and procedures for returning illegally staying third-country nationals. This seems to be true, for example, with regard both to the new Article 10 bis inserted in the Legislative Decree n. 286 on immigration, introducing the crime of clandestine immigration, and to the new paragraph 11 bis of Art. 61 of the Criminal Code, introducing a general aggravating circumstance consisting in the irregular status of the immigrant author of a crime. But this seems particularly true and blameworthy with regard to the practice of intercepting crumbling boats full of migrants on the high seas and coercively driving them back to Libya.

The 2017 Annual Conference of the Association of Human Rights Institutes (AHRI) held at the University of Leuven (KU Leuven) in Leuven (Belgium) from 27 to 28 April 2017 is the one of the leading events among the professional associations uniting international law scholars in human rights field. The conference focused on issues of monitoring compliance with international human rights obli-gations of States in the activities of universal and regional human rights bodies, particularly UN human rights mechanisms, human rights treaty bodies and regional and sub-regional human rights mechanisms within European, Inter-American and African human rights systems. Within these issues a particular at-tention was paid to the interaction between universal and regional human rights systems, specifically the role of regional mechanisms in the promotion and protection of human rights and enhancing univer-sal human rights standards enshrined in international human rights treaties. The paper provides a brief review of the selected reports presented at the conference, which raised a particular scientific interest of the author. The author describes the reports devoted to: 1) factors de-termining adoption and enforcement of international human rights obligations by States; 2) States’ im-plementation of international human rights norms through the lens of interplay between the internation-al, regional and national levels; 3) the interaction between the universal and European human rights sys-tems (European Court of Human Rights with human rights treaty bodies and special procedures of the UN Human Rights Council).