TORTURE PREVENTION NETWORK: TOPICS FOR PLANNEDACTION

1. Introduction
Eﬀorts to ensure better protection for the rights to decent treatment and, accordingly, the rights
not to be a victim of torture and other cruel, inhuman or degrading treatments, through international
human rights law, are being pursued using various standards and institutions, both governmental
and civil-society-based, at the local, regional and worldwide levels. These standards and institutions
are inevitably changing in a gradual and complementary way in order to achieve this goal. And in thisconstant quest being undertaken by humanity and its institutions we cannot ignore the inadequacyof efforts to date, given the continued and spreading use of torture and other inhuman treatments
throughout the world.
Taking into account the building of the new system for prevention of torture under the UN
Convention Optional Protocol against Torture and Other Cruel, Inhuman or Degrading Treatments or
Punishments (OPCAT), through periodic visits to all places of detention, is creating tension, conﬂict
and consensus generated by new actors and new dialectics. In this process, complementarity between
the work of international organizations, both regional and worldwide, and that of local institutions andorganizations must be strengthened.
An analysis of what has been done in recent years to eradicate or reduce torture and other inhumantreatments reveals that the new paradigm made up of a large mass of international standards andbodies created within the United Nations, which have in diﬀerent ways sparked the reform of domestic
constitutions, basic codes and procedural legislation, has not been adequate. Among other problems,
the fundamental institutions of the rule of law that bear responsibility in this area for ruling the law
have been incapable of halting the use of torture. I am referring in particular to institutions in the law
enforcement, judicial (judges, prosecutors and defence counsel) and penitentiary ﬁelds.
Against this background, the long struggle waged by numerous actors to achieve OPCATʼs coming
into force calls for each of us, within the context of our various responsibilities, to think and act in themost eﬀective possible way, both individually and collectively, and to report our actions.
I intend to begin this article, therefore, by identifying the conceptual guidelines that run through
OPCAT within a dynamic approach to the national preventive mechanisms (NPMs) in particular. I shallthen analyse the mandate of the Subcommittee on Prevention of Torture (SPT) and review the issues
about the desirability of creating a specific network for the prevention of torture. Thus, I suggest
some thoughts about strategic planning in the context of the international human rights bodies.

2. The Three Themes
A new system for periodic visits to all places of detention cannot be put force practice eﬀect without
taking into account the mistakes made and obstacles faced by international human rights bodies,both worldwide and regional. In particular, the implications of the non-fulfilment of the repeatedrecommendations made by such bodies, which undermines their effectiveness, must be addressed.
There is provision for this in the core elements of the well-developed text of OPCAT, the result ofmany years of deliberation. Hence I propose that we should look at what we might call the dynamic
elements for the construction of this new system to prevent torture: such a preventive system must
be independent in order to gather and generate relevant information while operating in inter-institutional253

mode.

2.1. Independence

The two prevention institutions created by OPCAT - the SPT and the NPMs - must be structured
so as to ensure their independence, mainly through the mechanisms for appointment and removal.
They must respect basic rules of transparent and open elections while fostering stability and allocating
material and human resources so as to ensure optimal functioning for the enhanced protection of
persons deprived of their freedom against torture and other inhuman treatments.
There will be several points of tension in these structures for building a new preventive system.
Sociological analysis of law enforcement, judicial and penitentiary institutions, for example,
reveals that their culture, structure and procedures fall well short of humanist standards. There
are great diﬀerences between formal, oﬃcial functions and those that are actually carried out, withcorresponding violations of human rights through actions, omissions or willingness to turn a blind eye.
We may also point out the strong impact that the leadership of such institutions has when it is in
the hands of persons who are truly committed to human rights, as demonstrated through their lives
and work. An example is the new Supreme Court of Argentina and the direct eﬀect of its decisions interms of pulling down the barriers of impunity represented by the due obedience and clean slatelaws.
I also wish to point out that proper selection of members of the bodies within the new system for
prison visits is essential; seeking candidates suitable for the performance of their tasks. In addition
to an appropriate structure, it is necessary to include persons with multidisciplinary and crossdisciplinary knowledge. By the latter, I mean persons with knowledge of the world behind prison bars,
and not necessarily formal knowledge (for example, former prisoners and their relatives, and not justlawyers). Geographical and gender diversity would likewise help to achieve the desired ends.
To this , it must be added what the SPT stated in its ﬁrst annual report1 as part of its guidelines
for the ongoing development of national preventive mechanisms, many of which are relevant to thesubject of independence.
Subcommittee for the Prevention of Torture: guidelines for the ongoing development of national
preventive mechanisms:(i) The mandate and powers of the national preventive mechanism should be clearly andspeciﬁcally established in national legislation as a constitutional or legislative text. The broaddeﬁnition of places of deprivation of freedom, in accordance with the Optional Protocol, shallbe reﬂected in that text;(ii) The national preventive mechanism should be established by a public, inclusive and transparent
process, including civil society and other actors involved in the prevention of torture; where
an existing body is considered for designation as the national preventive mechanism, is issue
should be open for debate, involving civil society;(iii) The independence of the national preventive mechanism, both actual and perceived, should
be fostered by a transparent process of selection and appointment of members who are
independent and do not hold a position that could raise questions of conﬂict of interest;(iv) Selection of members should be based on stated criteria related to the experience and expertise
required to carry out national preventive mechanism work eﬀectively and impartially;(v) National preventive mechanism membership should be gender-balanced and have adequate
representation of ethnic, minority and indigenous groups;(vi) The State shall take the necessary measures to ensure that the expert members of the national
preventive mechanism have the required capabilities and professional knowledge. Training
1

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First annual report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT/C/40/2), 25 April 2008.

should be provided to national preventive mechanisms;(vii) Adequate resources should be provided for the specific work of national preventive
mechanisms, in accordance with article 18, paragraph 3, of the Optional Protocol; these shouldbe ring-fenced, in terms of both budget and human resources;(viii) The work programme of national preventive mechanisms should cover all potential and actual
places of deprivation of freedom;(ix) The scheduling of national preventive mechanism visits should ensure eﬀective monitoring ofsuch places with regard to safeguards against ill-treatment;(x) Working methods of national preventive mechanisms should be developed and reviewed with aview to eﬀective identiﬁcation of good practice and gaps in protection;(xi) States should encourage national preventive mechanisms to report on visits with feedback
on good practice and gaps in protection to the institutions concerned, and address
recommendations to the responsible authorities on improvements in practice, policy and law;(xii) National preventive mechanisms and the authorities should establish an ongoing dialogue basedon the recommendations for changes arising from the visits and the actions taken to respond tosuch recommendations, in accordance with article 22 of the Optional Protocol;(xiii) The annual report of national preventive mechanisms shall be published in accordance witharticle 23 of the Optional Protocol;(xiv) The development of national preventive mechanisms should be considered an ongoingobligation, with reinforcement of formal aspects and working methods increasinghly reﬁned
and improved.
(xv) 2.2. Information
Independence with such built-in features, stemming from and focused on human rights, will help
to create substantial databases related to the prevention of torture and other inhuman treatments.
A body that is independent in terms of culture, know-how and experience will set up bases with theessential major indicators. Good information leads to a diagnosis that is indispensable for planning andsupporting eﬀective action in this area.
We could say, Show me your appointment book and Iʼll see how independent you are . The
attitudes that encourage transparency and indicate timely and appropriate decision-making on the partof each of the responsible bodies will help to give visibility to progress and regression and show where
responsibility lies. The opposite attitudes will foster opacity and concealment of all or part of thephenomena of the use of torture.
It should be added that bodies which are so designed and are devoted to shedding light on humanrights violations, have a tendency to be subjected to harassment, obstruction and disruption. These
human rights violations are prove to be cancealed or denied in various ways. Hence the need for
effective independence that prevents the bodyʼs structure and operations from being affected byremovals, budgetary cut-backs, dismissals from duty and similar manoeuvres. The idea has thus
evolved from the original one of strictly conﬁdential visits to one involving the mandatory publicationand circulation of the annual reports of the NPMs and aims at the same for the SPT, while preserving
the restricted nature of certain information in order to protect those concerned.
The abundant and important information available in several local, regional and worldwide databases
needs to be compiled and systematized to facilitate its appropriate use in formulating recommendations
to prevent torture and other inhuman treatments and also for follow-up activities. For all thesereasons, it is advisable to have structures and know-how, both in the SPT and in the NPMs, to carryout this collection, production and systematization of suitable information and its strategic use.

2.3. An inter-institutional approach

Experience shows that weaknesses continue to exist in the current arrangements for visits toplaces of detention, due to several reasons. Among the main factors it should be pointed out:(a) Shortage of human and material resources;255

(b) Lack of clarity in objectives and appropriate training;(c) Duplication and gaps of various types.
In order to overcome these limitations, what is needed is appropriate coordination carried out
rigorously enough. We can learn important lessons about coordination from other areas (for example,
security) so as to avoid making the same mistakes. To start with, it is not clear who should be involved
and what the shared objectives are. In addition, there is much lack of continuity among coordination
bodies, which are often used as instruments for whitewashing or falsely demonstrating that everythingis all right.
We can see that multisectoral eﬀorts range from a methodology in which everyone operates in an
isolated way to inter-institutional integration in which everyone brings in something new - in otherwords, new practices are created. Between these two extremes, however, we see hybrid situations
that are not clear cut. This is because of the lack of appropriate institutional machinery and operating
regulations in which all the sectors preserve their identity while integrating clearly their mandates andavoiding the above-mentioned duplications and gaps.
Coordination is necessary in order to strengthen capacities through cooperation . Confusion of roles
results in duplication, which is strategically and tactically inadmissible where there is a widespreadshortage of resources, while simultaneously undermining proper accountability. By way of a rule, let
us say that we need to seek an appropriate interdependence.
Here follows few more recommendatios:
2.3.1. Formalized coordination relations
While a degree of informality facilitates the free flow of information, it can also jeopardize
confidentiality on certain subjects. At the same time, an informal approach may be adopted on thepretext of getting things done , thereby bypassing controls and hence reducing transparency. Thisapproach ultimately leads to self-deception, sometimes for the purpose of hanging on to power;
it creates false expectations and erodes trust, and thus, it is a bad approach for fostering andstrengthening inter-institutional relations.
Carrying out the activities mandated by OPCAT at various levels, in various spheres and among
various participants needs the establishment of relations of trust, which must be sustained throughconstant, conscientious and continuous eﬀort. This I believe this is essential as it defuses tensions,avoids confusion in roles and breaks down stereotypes caused by a lack of real understanding of otherinstitutions or their staﬀ.
Regard this, anticipating somewhat the next point, we must promote and create, among otherthings, training opportunities for those who will be responsible for coordinating networks for carryingout periodic visits to places of detention with a view to overcoming misunderstandings and mistrust.
The SPT has taken part in multisectoral meetings to build bridges among participants, for example
during missions concerning the NPMs in Peru, Bolivia, Paraguay and Brazil, with the invaluable
support of the Association for the Prevention of Torture.
2.3.2. Accountability
Proper inter-institutional work will facilitate accountability since now it is not clear who is
responsible for what and to whom. Accountability directly aﬀects the legitimacy of bodies which are
guided by this regulation. In the case of the NPMs, this can be ensured, among other means, throughan appropriate mechanism for appointing their members as well as the eﬃcient administration of theirresources.

2562.3.3. Procedures and models
In the search for efficiency and effectiveness, we sometimes concentrate exclusivity on the best
institutional model, disregarding the external or contextual aspects that aﬀect relations of cooperation(for example, brainstorming and discussions) and trust.
If we concentrate exclusively on the best model for NPMs (the same applies to the SPT, mutatis
mutandis) in terms of eﬃciency and eﬀectiveness in carrying out their respective tasks and functions,
we run the risk of ignoring the transparency necessary for the development of relations of trust
between the State and civil society. We must not disregard aspects that may be unquantifiable yet
are key to the creation of common ground between the State and civil society, promoting relations ofcooperation, reciprocity and interdependence rather than competition and isolation.
We must even add that the search for eﬀective theoretical models must not lead to paper NPMs ,a common phenomenon in judicial, law enforcement and imprisonment institutions, where in practice,
the actual or possible functions diverge from the formal or oﬃcial ones. This will mean greater politicalcosts and a new loss of conﬁdence due to the generation of false expectations.

3. The Subcommittee on Prevention of Torture (SPT)The task of preventing torture and other cruel, inhuman or degrading treatments or punishments
by enhancing protection of persons deprived of their freedom in concert with State parties necessitates
the building of a new system for periodic visits to be carried out by international, regional and national
bodies. The role of the SPT,2 at this groundbreaking stage, with all the strengths, weaknesses,
opportunities and risks that it represents, is to carry out its functions in a balanced way regarding thethree conceptual cores of its mandate as laid down in article 11 of OPCAT, which states:
The Subcommittee on Prevention shall:(a) Visit the places referred to in article 4 and make recommendations to State parties concerning
the protection of persons deprived of their freedom against torture and other cruel, inhuman ordegrading treatments or punishments;(b) In regard to the national preventive mechanisms:(i)
Advise and assist State parties, when necessary, in the creation of their producers;(ii)
Maintain direct, and if necessary confidential, contact with the national preventive
mechanisms and offer them training and technical assistance in order to a view tostrengthen their capacities;(iii) Advise and assist them in the evaluation of the needs and the means necessary tostrengthen the protection of persons deprived of their freedom against torture andother cruel, inhuman or degrading treatments or punishments;(iv) Make recommendations and observations to the States parties with a view tostrengthening the capacity and the mandate of the national preventive mechanisms
for the prevention of torture and other cruel, inhuman or degrading treatments or
punishments;(c) Cooperate, for the prevention of torture in general, with the corresponding United Nations
bodies 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.3

2

3

Current membership: Vicechairman Mr. Mario Luís Coriolano (Argentina), Mr. Emilio Ginés Santidrian (Spain),
Ms. Marija Definis Gojanovic (Croatia), Mr. Zdenek Hajek (Czech Republic), Mr. Zbigniew Lasocik (Poland),Vicechairman Mr. Hans Draminsky Petersen (Denmark), Mr. Malcolm Evans (United Kingdom), President Mr.
Víctor Manuel Rodríguez Rescia (Costa Rica), Mr. Miguel Sarre Iguiniz (Mexico), Mr. Wilder Tayler Souto(Uruguay).
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, art. 11 (emphasis added by the author).

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Taking into account the guidelines, we can observe that, unlike other international organizations
that carry out their work through the examination of reports from States and also, in somecases, through the handling of individual cases and possible visits, the Subcommittee will makerecommendations and observations to State parties concerning public policies for the prevention of
torture and other inhuman treatments. We must fulfil this function in a complementary way, andour activities must be guided by proper planning of the new system of periodic visits including andnecessarily getting feedback from a network of NPMs and other international, regional and localorganizations ﬁghting torture.
This torture prevention network must be supported and sustained by the broad and intensive
eﬀorts of civil-society organizations and some State sectors which have traditionally done such work in
isolation, even at very hard times. It does not mean cleaning the slate and starting again or continuing
this way. The aim is to strengthen the current work being carried out by many persons and institutions
to ﬁght torture.
The mandate to carry out visits while interacting not only with States parties and the NPMs
but also with various institutions, organizations and individuals chosen by the SPT because of theirrelevant information, as well as the freedom to choose places that are to be visited, oﬀer a desirable
new starting point. The aim is to launch a new system of independent periodic visits involving an interinstitutional approach and the provision of important information in order to make recommendations
and observations designed to strengthen the protection of persons deprived of freedom against tortureand other inhuman treatment.
The greater the visibility and awareness of the problems that can be generated by the various
participants, the better the opportunities for achieving changes will be for preventing violations.
The core of the mandate of the SPT, like that of the other international, regional and local actors(both from civil society and from the State), contains the necessary foundations to enable new eﬀorts
without undermining existing ones. This should help to strengthen the rule of law which calls for new
institutions oriented and created from and for human rights, synonymo of rule of law.

4. Torture Prevention Network
The social movements that arose in connection with the struggles waged by groups associated withfeminism, environmentalism, trade unionism and anti-discrimination, among others, provide examples,with distinctive regional features, of how to bring together very diverse sectors. At the same time,
there has been a new approach to the relations between the new social movements and the State:
on one hand, civil society has been invited to become involved in the drafting and implementationof government policies, and on the other, the State has gained certain influence in the way theappointment work of civil society are organized.
In general, we can say that the will of State parties, expressed through their ratiﬁcation of OPCAT,
and the strengthening of the human rights movement will be a formula enabling us to work together tobuild a new system of periodic visits to eﬀectively prevent torture. OPCAT4 clearly refers to the needfor relations of cooperation in such ﬁelds as advice and assistance by the SPT to State parties in theestablishment of NPMs in order, where necessary, to make recommendations and observations with aview to strengthening the capacity and the mandate of the NPMs.
At the same time, work must be done to improve the conceptualization of specific prevention
efforts in relation to torture and other inhuman treatments; it should be done in an authentic way.
Extrapolation from other ﬁelds, reductionism, or falling into the trap of false antagonisms within thisﬁeld, especially with regard to civil security, should be avoided.
The levels of analysis of torture and other inhuman treatments throughout the historical-political,
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I am referring speciﬁcally to art. 2, para. 4, art. 11 (b) (i) and art. 11 (b) (iv) of OPCAT.

social-institutional and psychologico-social aspects lead us to revise the much repeated indications andrecommendations focused on reformist type aspects that emphasize improvements of a structural andfunctional type (for instance in building matters, doctors and lawyers assistance, etc.) but neglect theunderlying cultural or ideological aspects or those which give rise to structures and routines. Hence,
we must move towards strategies for integral transformation involving both aspects - structural andideological-cultural - while encouraging public debates on the subject.
Facing the challenge of articulating this new prevention network, we must avoid both the false
optimism of believing that consensus will not be troublesome, and the sterile pessimism of emphasizingthat the State, represented by any of its components, will always look for ways of continuing to apply
torture. Both positions are subjective and prejudiced and, in my view, improperly juxtaposing conﬂict
and consensus.
Instead, we must highlight, support and promote the semble processes of building torture
prevention networks that have been generated by OPCAT in various areas. We can also identify andreject situations that involve more exclusion and opacity than inclusiveness and transparency, essential
features for the new institutional framework that OPCAT is calling on us to build.
The development of NPMs of mixed origin made up of State and civil society, generates therelational dynamics already mentioned with respect to social movements. Having greater civil
responsibility in handling public aﬀairs involves certain risks concerning discipline and control which
are leading civil society to wonder whether or not they should become involved in NPMs. Here,the SPT should encourage channels for dialogue and cooperation with the features we have been
describing and with long-term beneﬁts since they promote relations of trust and reciprocity without
ignoring areas of tension.
We will strengthen all the sectors involved in the prevention of torture through a cooperation
network that is well designed, straightforward and open, with speciﬁc contributions to be made without
loss of identity. The methodology for building inter-institutional relations is a key issue. There is no
single formula for creating an ideal NPM, and this will have to be determined for each speciﬁc context- applying the slogan of the new social movements in the environmental ﬁeld, thinking globally andacting locally - . However, care should be taken to avoid rhetorics that leads to complexities in theimplementation. Solitary or isolated eﬀorts, which may be attractive in the short term because of theirlower costs, mean the weakening of the struggle for preventing torture.
It seems to me that we should engage in the construction keeping in mind achievements andfailures, progress and draw backs. This includes dismantling authoritarian and violent institutions,or their authoritarian past behaviours, creating new practices compatible with the culture of humanrights.

5. Inter-Institutional Strategic Planning
Lastly, by way of a proposal, I should like to raise a number of ideas on how to achieve the greatest
possible impact in the articulation and operativeness of the network composed of various United
Nations regional international protection bodies together with local institutions - State and civil-society
bodies - in the light of the diﬀerent mandates of the bodies involved in ﬁghting torture.
In addition to the network of NPMs and a multiplicity of local actors, we have a situation where the
SPT must closely cooperate - in the areas of planning, action and follow-up - with the United Nations
treaty bodies (Committee against Torture, Human Rights Committee, CEDAW Committee, Committee
on the Rights of the Child, etc.) and with the various special procedures (Special Rapporteur on
torture, Working Group on Arbitrary Detention, Special Rapporteur on summary executions, etc.),
as expressly laid down in article 11 (c) of OPCAT. It is also necessary to cooperate with otherinternational bodies (such as the International Committee of the Red Cross) and regional bodies (InterAmerican Commission on Human Rights, European Committee for the Prevention of Torture, African259

Commission on Human and Peoplesʼ Rights, etc.). Similarly, close ties must be sought with institutions
and agencies working in important thematic areas, such as health, and protection of vulnerable
population groups - for example, against slavery or traﬃcking in women, to cite one example amongmany.
The diagnosis of the situation regarding torture, and action to combat it, which would underpin
rational planning of this prevention network, could be formed as follows. Firstly, by categorizing
the Member States of the United Nations in terms of whether they have ratiﬁed or signed OPCAT.
Secondly, we take account of the range of activities by the various United Nations bodies and special
procedures (country reports; complaints in individual cases; ﬁeld visits and advocacy), supplemented
by the activities of the regional human rights agencies. Thirdly, we classify the situations in eachregion, and country by country, on the basis of the extent of the use of torture and other inhumantreatments. Fourthly, by taking into account the existence and eﬀectiveness of local institutions in thearea, especially NPMs. The SPT will thus be able to design and carry out a set of diﬀerent activities inaccordance with an annual or periodic plan.
Such planning would call for basic measures of institutional engineering, such as the constructionof a forum for coordination among secretariats (or if possible through the construction of a single
secretariat) which, together with an inter-committee working group and special procedures, would
collect and systematize all the information relatied to the four points mentioned above. In this way,
it would be possible to create a dynamics of joint work in the evaluation, design and implementationof such action plans, which would be periodically assessed and redesigned. And in that way to makestrategic use of the vast and valuable information which already exists, but is dispersed.
On this basis, the SPT will be able to better perform its tasks in a rational, strategic and planned
manner. In particular, it will decide on the implementation of:(a) Missions to State parties to visit places of detention and make or follow up recommendations of greater or lesser duration and greater or lesser urgency;(b) Missions to States parties to provide advice and support for the establishment or upgrading ofan NPM;(c) Advocacy to foster the signing or ratification of OPCAT. It will be also possible to forpromotion of the activation choose of other United Nations and regional procedures (forexample, complaints in individual cases) and to report on the need to call for support from thevarious assistance or cooperation funds for the implementation of recommendations to prevent
torture and improve conditions in detention.
In this way, the SPT will be able to achieve greater impact in the prevention of torture and otherinhuman treatments, gaining through its achievements the place it deserves as a global reference inthe ﬁeld of prevention of torture.

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