Optional Protocol to the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment
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Adopted on 18 December 2002 at the fifty-seventh
session of the General Assembly of the United Nations by resolution
A/RES/57/199.
Protocol is available for signature,
ratification and accession as from 4 February 2003 (i.e. the date
upon which the original of the Protocol was established) at United
Nations Headquarters in New York.
PREAMBLE
The States Parties to the present Protocol,
Reaffirming that torture and other cruel, inhuman or degrading
treatment or punishment are prohibited and constitute serious
violations of human rights,
Convinced that further measures are necessary to achieve the
purposes of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (hereinafter referred to as the
Convention) and to strengthen the protection of persons deprived of
their liberty against torture and other cruel, inhuman or degrading
treatment or punishment,
Recalling that articles 2 and 16 of the Convention oblige each
State Party to take effective measures to prevent acts of torture
and other cruel, inhuman or degrading treatment or punishment in any
territory under its jurisdiction,
Recognizing that States have the primary responsibility for
implementing those articles, that strengthening the protection of
people deprived of their liberty and the full respect for their
human rights is a common responsibility shared by all and that
international implementing bodies complement and strengthen national
measures,
Recalling that the effective prevention of torture and other
cruel, inhuman or degrading treatment or punishment requires
education and a combination of various legislative, administrative,
judicial and other measures,
Recalling also that the World Conference on Human Rights firmly
declared that efforts to eradicate torture should first and foremost
be concentrated on prevention and called for the adoption of an
optional protocol to the Convention, intended to establish a
preventive system of regular visits to places of detention,
Convinced that the protection of persons deprived of their
liberty against torture and other cruel, inhuman or degrading
treatment or punishment can be strengthened by non-judicial means of
a preventive nature, based on regular visits to places of detention,
Have agreed as follows:
PART I
General principles
Article 1
The objective of the present Protocol is to establish a system of
regular visits undertaken by independent international and national
bodies to places where people are deprived of their liberty, in
order to prevent torture and other cruel, inhuman or degrading
treatment or punishment.
Article 2
1. A Subcommittee on Prevention of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment of the Committee
against Torture (hereinafter referred to as the Subcommittee on
Prevention) shall be established and shall carry out the functions
laid down in the present Protocol.
2. The Subcommittee on Prevention shall carry out its work within
the framework of the Charter of the United Nations and shall be
guided by the purposes and principles thereof, as well as the norms
of the United Nations concerning the treatment of people deprived of
their liberty.
3. Equally, the Subcommittee on Prevention shall be guided by the
principles of confidentiality, impartiality, non-selectivity,
universality and objectivity.
4. The Subcommittee on Prevention and the States Parties shall
cooperate in the implementation of the present Protocol.
Article 3
Each State Party shall set up, designate or maintain at the
domestic level one or several visiting bodies for the prevention of
torture and other cruel, inhuman or degrading treatment or
punishment (hereinafter referred to as the national preventive
mechanism).
Article 4
1. Each State Party shall allow visits, in accordance with the
present Protocol, by the mechanisms referred to in articles 2 and 3
to 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 (hereinafter referred to as places of detention). These
visits shall be undertaken with a view to strengthening, if
necessary, the protection of these persons against torture and other
cruel, inhuman or degrading treatment or punishment.
2. For the purposes of the present Protocol, 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.
PART II
Subcommittee on Prevention
Article 5
1. The Subcommittee on Prevention shall consist of ten members.
After the fiftieth ratification of or accession to the present
Protocol, the number of the members of the Subcommittee on
Prevention shall increase to twenty-five.
2. The members of the Subcommittee on Prevention shall be chosen
from among persons of high moral character, having proven
professional experience in the field of the 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.
3. In the composition of the Subcommittee on Prevention due
consideration shall be given to equitable geographic distribution
and to the representation of different forms of civilization and
legal systems of the States Parties.
4. In this composition consideration shall also be given to
balanced gender representation on the basis of the principles of
equality and non-discrimination.
5. No two members of the Subcommittee on Prevention may be
nationals of the same State.
6. The members of the Subcommittee on Prevention shall serve in
their individual capacity, shall be independent and impartial and
shall be available to serve the Subcommittee on Prevention
efficiently.
Article 6
1. Each State Party may nominate, in accordance with paragraph 2
of the present article, up to two candidates possessing the
qualifications and meeting the requirements set out in article 5,
and in doing so shall provide detailed information on the
qualifications of the nominees.
2.
(a) The nominees shall have the nationality of a State Party to
the present Protocol;
(b) At least one of the two candidates shall have the nationality
of the nominating State Party;
(c) No more than two nationals of a State Party shall be
nominated;
(d) Before a State Party nominates a national of another State
Party, it shall seek and obtain the consent of that State Party.
3. At least five months before the date of the meeting of the
States Parties during which the elections will be held, the
Secretary-General of the United Nations shall address a letter to
the States Parties inviting them to submit their nominations within
three months. The Secretary-General shall submit a list, in
alphabetical order, of all persons thus nominated, indicating the
States Parties that have nominated them.
Article 7
1. The members of the Subcommittee on Prevention shall be elected
in the following manner:
(a) Primary consideration shall be given to the fulfilment of the
requirements and criteria of article 5 of the present Protocol;
(b) The initial election shall be held no later than six months
after the entry into force of the present Protocol;
(c) The States Parties shall elect the members of the
Subcommittee on Prevention by secret ballot;
(d) Elections of the members of the Subcommittee on Prevention
shall be held at biennial meetings of the States Parties convened by
the Secretary-General of the United Nations. At those meetings, for
which two thirds of the States Parties shall constitute a quorum,
the persons elected to the Subcommittee on Prevention shall be those
who obtain the largest number of votes and an absolute majority of
the votes of the representatives of the States Parties present and
voting.
2. If during the election process two nationals of a State Party
have become eligible to serve as members of the Subcommittee on
Prevention, the candidate receiving the higher number of votes shall
serve as the member of the Subcommittee on Prevention. Where
nationals have received the same number of votes, the following
procedure applies:
(a) Where only one has been nominated by the State Party of which
he or she is a national, that national shall serve as the member of
the Subcommittee on Prevention;
(b) Where both candidates have been nominated by the State Party
of which they are nationals, a separate vote by secret ballot shall
be held to determine which national shall become the member;
(c) Where neither candidate has been nominated by the State Party
of which he or she is a national, a separate vote by secret ballot
shall be held to determine which candidate shall be the member.
Article 8
If a member of the Subcommittee on Prevention dies or resigns, or
for any cause can no longer perform his or her duties, the State
Party that nominated the member shall nominate another eligible
person possessing the qualifications and meeting the requirements
set out in article 5, taking into account the need for a proper
balance among the various fields of competence, to serve until the
next meeting of the States Parties, subject to the approval of the
majority of the States Parties. The approval shall be considered
given unless half or more of the States Parties respond negatively
within six weeks after having been informed by the Secretary-General
of the United Nations of the proposed appointment.
Article 9
The members of the Subcommittee on Prevention shall be elected
for a term of four years. They shall be eligible for re-election
once if renominated. The term of half the members elected at the
first election shall expire at the end of two years; immediately
after the first election the names of those members shall be chosen
by lot by the Chairman of the meeting referred to in article 7,
paragraph 1 ( d).
Article 10
1. The Subcommittee on Prevention shall elect its officers for a
term of two years. They may be re-elected.
2. The Subcommittee on Prevention shall establish its own rules
of procedure. These rules shall provide, inter alia, that:
(a) Half the members plus one shall constitute a quorum;
(b) Decisions of the Subcommittee on Prevention shall be made by
a majority vote of the members present;
(c) The Subcommittee on Prevention shall meet in camera.
3. The Secretary-General of the United Nations shall convene the
initial meeting of the Subcommittee on Prevention. After its initial
meeting, the Subcommittee on Prevention shall meet at such times as
shall be provided by its rules of procedure. The Subcommittee on
Prevention and the Committee against Torture shall hold their
sessions simultaneously at least once a year.
PART III
Mandate of the Subcommittee on Prevention
Article 11
1. The Subcommittee on Prevention shall:
(a) Visit the places referred to in article 4 and make
recommendations to States Parties concerning the protection of
persons deprived of their liberty against torture and other cruel,
inhuman or degrading treatment or punishment;
(b) In regard to the national preventive mechanisms:
(i) Advise and assist States Parties, when necessary, in their
establishment;
(ii) Maintain direct, and if necessary confidential, contact with
the national preventive mechanisms and offer them training and
technical assistance with a view to strengthening their capacities;
(iii) Advise and assist them in the evaluation of the needs and
the means necessary to strengthen the protection of persons deprived
of their liberty against torture and other cruel, inhuman or
degrading treatment or punishment;
(iv) Make recommendations and observations to the States Parties
with a view to strengthening the capacity and the mandate of the
national preventive mechanisms for the prevention of torture and
other cruel, inhuman or degrading treatment or punishment;
(c) Cooperate, for the prevention of torture in general, with the
relevant United Nations organs and mechanisms as well as with the
international, regional and national institutions or organizations
working towards the strengthening of the protection of all persons
against torture and other cruel, inhuman or degrading treatment or
punishment.
Article 12
In order to enable the Subcommittee on Prevention to comply with
its mandate as laid down in article 11, the States Parties
undertake:
(a) To receive the Subcommittee on Prevention in their territory
and grant it access to the places of detention as defined in article
4 of the present Protocol;
(b) To provide all relevant information the Subcommittee on
Prevention may request to evaluate the needs and measures that
should be adopted to strengthen the protection of persons deprived
of their liberty against torture and other cruel, inhuman or
degrading treatment or punishment;
(c) To encourage and facilitate contacts between the Subcommittee
on Prevention and the national preventive mechanisms;
(d) To examine the recommendations of the Subcommittee on
Prevention and enter into dialogue with it on possible
implementation measures.
Article 13
1. The Subcommittee on Prevention shall establish, at first by
lot, a programme of regular visits to the States Parties in order to
fulfil its mandate as established in article 11.
2. After consultations, the Subcommittee on Prevention shall
notify the States Parties of its programme in order that they may,
without delay, make the necessary practical arrangements for the
visits to be conducted.
3. The visits shall be conducted by at least two members of the
Subcommittee on Prevention. These members may be accompanied, if
needed, by experts of demonstrated professional experience and
knowledge in the fields covered by the present Protocol who shall be
selected from a roster of experts prepared on the basis of proposals
made by the States Parties, the Office of the United Nations High
Commissioner for Human Rights and the United Nations Centre for
International Crime Prevention. In preparing the roster, the States
Parties concerned shall propose no more than five national experts.
The State Party concerned may oppose the inclusion of a specific
expert in the visit, whereupon the Subcommittee on Prevention shall
propose another expert.
4. If the Subcommittee on Prevention considers it appropriate, it
may propose a short follow-up visit after a regular visit.
Article 14
1. In order to enable the Subcommittee on Prevention to fulfil
its mandate, the States Parties to the present Protocol undertake to
grant it:
(a) Unrestricted access to all information concerning the number
of persons deprived of their liberty in places of detention as
defined in article 4, as well as the number of places and their
location;
(b) Unrestricted access to all information referring to the
treatment of those persons as well as their conditions of
detention;
(c) Subject to paragraph 2 below, unrestricted access to all
places of detention and their installations and facilities;
(d) The opportunity to have private interviews with the persons
deprived of their liberty without witnesses, either personally or
with a translator if deemed necessary, as well as with any other
person who the Subcommittee on Prevention believes may supply
relevant information;
(e) The liberty to choose the places it wants to visit and the
persons it wants to interview.
2. Objection to a visit to a particular place of detention may be
made only on urgent and compelling grounds of national defence,
public safety, natural disaster or serious disorder in the place to
be visited that temporarily prevent the carrying out of such a
visit. The existence of a declared state of emergency as such shall
not be invoked by a State Party as a reason to object to a
visit.
Article 15
No authority or official shall order, apply, permit or tolerate
any sanction against any person or organization for having
communicated to the Subcommittee on Prevention or to its delegates
any information, whether true or false, and no such person or
organization shall be otherwise prejudiced in any way.
Article 16
1. The Subcommittee on Prevention shall communicate its
recommendations and observations confidentially to the State Party
and, if relevant, to the national preventive mechanism.
2. The Subcommittee on Prevention shall publish its report,
together with any comments of the State Party concerned, whenever
requested to do so by that State Party. If the State Party makes
part of the report public, the Subcommittee on Prevention may
publish the report in whole or in part. However, no personal data
shall be published without the express consent of the person
concerned.
3. The Subcommittee on Prevention shall present a public annual
report on its activities to the Committee against Torture.
4. If the State Party refuses to cooperate with the Subcommittee
on Prevention according to articles 12 and 14, or to take steps to
improve the situation in the light of the recommendations of the
Subcommittee on Prevention, the Committee against Torture may, at
the request of the Subcommittee on Prevention, decide, by a majority
of its members, after the State Party has had an opportunity to make
its views known, to make a public statement on the matter or to
publish the report of the Subcommittee on Prevention.
PART IV
National preventive mechanisms
Article 17
Each State Party shall maintain, designate or establish, at the
latest one year after the entry into force of the present Protocol
or of its ratification or accession, one or several independent
national preventive mechanisms for the prevention of torture at the
domestic level. Mechanisms established by decentralized units may be
designated as national preventive mechanisms for the purposes of the
present Protocol if they are in conformity with its provisions.
Article 18
1. The States Parties shall guarantee the functional independence
of the national preventive mechanisms as well as the independence of
their personnel.
2. The States Parties shall take the necessary measures to ens
ure that the experts of the national preventive mechanism have the
required capabilities and professional knowledge. They shall strive
for a gender balance and the adequate representation of ethnic and
minority groups in the country.
3. The States Parties undertake to make available the necessary
resources for the functioning of the national preventive
mechanisms.
4. When establishing national preventive mechanisms, States
Parties shall give due consideration to the Principles relating to
the status of national institutions for the promotion and protection
of human rights.
Article 19
The national preventive mechanisms shall be granted at a minimum
the power:
(a) To regularly examine the treatment of the persons deprived of
their liberty in places of detention as defined in article 4, with a
view to strengthening, if necessary, their protection against
torture and other cruel, inhuman or degrading treatment or
punishment;
(b) To make recommendations to the relevant authorities with the
aim of improving the treatment and the conditions of the persons
deprived of their liberty and to prevent torture and other cruel,
inhuman or degrading treatment or punishment, taking into
consideration the relevant norms of the United Nations;
(c) To submit proposals and observations concerning existing or
draft legislation.
Article 20
In order to enable the national preventive mechanisms to fulfil
their mandate, the States Parties to the present Protocol undertake
to grant them:
(a) Access to all information concerning the number of persons
deprived of their liberty in places of detention as defined in
article 4, as well as the number of places and their location;
(b) Access to all information referring to the treatment of those
persons as well as their conditions of detention;
(c) Access to all places of detention and their installations and
facilities;
(d) The opportunity to have private interviews with the persons
deprived of their liberty without witnesses, either personally or
with a translator if deemed necessary, as well as with any other
person who the national preventive mechanism believes may supply
relevant information;
(e) The liberty to choose the places they want to visit and the
persons they want to interview;
(f) The right to have contacts with the Subcommittee on
Prevention, to send it information and to meet with it.
Article 21
1. No authority or official shall order, apply, permit or
tolerate any sanction against any person or organization for having
communicated to the national preventive mechanism any information,
whether true or false, and no such person or organization shall be
otherwise prejudiced in any way.
2. Confidential information collected by the national preventive
mechanism shall be privileged. No personal data shall be published
without the express consent of the person concerned.
Article 22
The competent authorities of the State Party concerned shall
examine the recommendations of the national preventive mechanism and
enter into a dialogue with it on possible implementation
measures.
Article 23
The States Parties to the present Protocol undertake to publish
and disseminate the annual reports of the national preventive
mechanisms.
PART V
Declaration
Article 24
1. Upon ratification, States Parties may make a declaration
postponing the implementation of their obligations under either part
III or part IV of the present Protocol.
2. This postponement shall be valid for a maximum of three years.
After due representations made by the State Party and after
consultation with the Subcommittee on Pre vention, the Committee
against Torture may extend that period for an additional two
years.
PART VI
Financial provisions
Article 25
1. The expenditure incurred by the Subcommittee on Prevention in
the implementation of the present Protocol shall be borne by the
United Nations.
2. The Secretary-General of the United Nations shall provide the
necessary staff and facilities for the effective performance of the
functions of the Subcommittee on Prevention under the present
Protocol.
Article 26
1. A Special Fund shall be set up in accordance with the relevant
procedures of the General Assembly, to be administered in accordance
with the financial regulations and rules of the United Nations, to
help finance the implementation of the recommendations made by the
Subcommittee on Prevention after a visit to a State Party, as well
as education programmes of the national preventive mechanisms.
2. The Special Fund may be financed through voluntary
contributions made by Governments, intergovernmental and
non-governmental organizations and other private or public
entities.
PART VII
Final provisions
Article 27
1. The present Protocol is open for signature by any State that
has signed the Convention.
2. The present Protocol is subject to ratification by any State
that has ratified or acceded to the Convention. Instruments of
ratification shall be deposited with the Secretary-General of the
United Nations.
3. The present Protocol shall be open to accession by any State
that has ratified or acceded to the Convention.
4. Accession shall be effected by the deposit of an instrument of
accession with the Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all
States that have signed the present Protocol or acceded to it of the
deposit of each instrument of ratification or accession.
Article 28
1. The present Protocol shall enter into force on the thirtieth
day after the date of deposit with the Secretary-General of the
United Nations of the twentieth instrument of ratification or
accession.
2. For each State ratifying the present Protocol or acceding to
it after the deposit with the Secretary-General of the United
Nations of the twentieth instrument of ratification or accession,
the present Protocol shall enter into force on the thirtieth day
after the date of deposit of its own instrument of ratification or
accession.
Article 29
The provisions of the present Protocol shall extend to all parts
of federal States without any limitations or exceptions.
Article 30
No reservations shall be made to the present Protocol.
Article 31
The provisions of the present Protocol shall not affect the
obligations of States Parties under any regional convention
instituting a system of visits to places of detention. The
Subcommittee on Prevention and the bodies established under such
regional conventions are encouraged to consult and cooperate with a
view to avoiding duplication and promoting effectively the
objectives of the present Protocol.
Article 32
The provisions of the present Protocol shall not affect the
obligations of States Parties to the four Geneva Conventions of 12
August 1949 and the Additional Protocols thereto of 8 June 1977, nor
the opportunity available to any State Party to authorize the
International Committee of the Red Cross to visit places of
detention in situations not covered by international humanitarian
law.
Article 33
1. Any State Party may denounce the present Protocol at any time
by written notification addressed to the Secretary-General of the
United Nations, who shall thereafter inform the other States Parties
to the present Protocol and the Convention. Denunciation shall take
effect one year after the date of receipt of the notification by the
Secretary-General.
2. Such a denunciation shall not have the effect of releasing the
St ate Party from its obligations under the present Protocol in
regard to any act or situation that may occur prior to the date on
which the denunciation becomes effective, or to the actions that the
Subcommittee on Prevention has decided or may decide to take with
respect to the State Party concerned, nor shall denunciation
prejudice in any way the continued consideration of any matter
already under consideration by the Subcommittee on Prevention prior
to the date on which the denunciation becomes effective.
3. Following the date on which the denunciation of the State
Party becomes effective, the Subcommittee on Prevention shall not
commence consideration of any new matter regarding that State.
Article 34
1. Any State Party to the present Protocol may propose an
amendment and file it with the Secretary-General of the United
Nations. The Secretary-General shall thereupon communicate the
proposed amendment to the States Parties to the present Protocol
with a request that they notify him whether they favour a conference
of States Parties for the purpose of considering and voting upon the
proposal. In the event that within four months from the date of such
communication at least one third of the States Parties favour such a
conference, the Secretary-General shall convene the conference under
the auspices of the United Nations. Any amendment adopted by a
majority of two thirds of the States Parties present and voting at
the conference shall be submitted by the Secretary-General of the
United Nations to all States Parties for acceptance.
2. An amendment adopted in accordance with paragraph 1 of the
present article shall come into force when it has been accepted by a
two -thirds majority of the States Parties to the present Protocol
in accordance with their respective constitutional processes.
3. When amendments come into force, they shall be binding on
those States Parties that have accepted them, other States Parties
still being bound by the provisions of the present Protocol and any
earlier amendment that they have accepted.
Article 35
Members of the Subcommittee on Prevention and of the national
preventive mechanisms shall be accorded such privileges and
immunities as are necessary for the independent exercise of their
functions. Members of the Subcommittee on Prevention shall be
accorded the privileges and immunities specified in section 22 of
the Convention on the Privileges and Immunities of the United
Nations of 13 February 1946, subject to the provisions of section 23
of that Convention.
Article 36
When visiting a State Party, the members of the Subcommittee on
Prevention shall, without prejudice to the provisions and purposes
of the present Protocol and such privileges and immunities as they
may enjoy:
(a) Respect the laws and regulations of the visited State;
(b) Refrain from any action or activity incompatible with the
impartial and international nature of their duties.
Article 37
1. The present Protocol, of which the Arabic, Chinese, English,
French, Russian and Spanish texts are equally authentic, shall be
deposited with the Secretary-General of the United Nations.
2. The Secretary-General of the United Nations shall transmit
certified copies of the present Protocol to all States.
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