OPTIONAL PROTOCOL TO THE CONVENTION AGAINST
TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
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
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 de posited 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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