Dilnoza MURATOVA,

Deputy Director of the National Centre of the Republic of Uzbekistan for Human Rights

Abstract. Among a number of measures taken to prevent torture, the establishment of National Preventive Mechanisms (NPMs) is of particular importance. A NPM is a unified system of monitoring human rights in places of detention that meets international standards. In each country, the NPM has its own peculiarities. The article analyzes and presents to the reader the advantages of the NPM in reducing cases of torture and other ill-treatment in the States parties to the Optional Protocol. In addition, the research paper substantiates the author's position on the role of the NPM in the construction of a democratic state and civil society.

Key words: National Preventive Mechanism, Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, democracy, civil society.

Аннотация. Қийноқларнинг олдини олиш мақсадида қабул қилинган чора-тадбирлар орасида миллий превентив механизмларни (МПМ) яратиш алоҳида аҳамиятга эга. МПМ халқаро стандартларга жавоб берадиган мажбурий парваришлаш жойларида инсон ҳуқуқларига риоя этилишини назорат қилишнинг ягона тизимидир. Ҳар бир давлатда миллий превентив механизми ўзига хос хусусиятларга эга. Мақолада Факультатив протоколга аъзо давлатларда қийноқлар ва бошқа зўравонлик ҳолатларини камайтиришда МПМнинг афзалликлари таҳлил қилинган. Шунингдек, илмий тадқиқотда муаллифнинг демократик давлат қуриш ва фуқаролик жамиятини ривожлантиришда МПМнинг роли тўғрисидаги асосли фикрлари келтирилган.

Калит сўзлар: миллий превентив механизми, БМТнинг Қийноқларга ва бошқа шафқатсиз, ғайриинсоний ёки қадр-қимматни камситувчи муомала ва жазо турларига қарши конвенциясига Факультатив протокол, Бирлашган Миллатлар Ташкилоти, демократия, фуқаролик жамияти.

Аннотация. Среди мер, принимаемых с целью предупреждения пыток, особое значение приобретает создание национальных превентивных механизмов (НПМ).  НПМ представляют собой единую систему контроля за соблюдением прав человека в местах принудительного содержания, отвечающую международным стандартам. В каждом государстве НПМ имеют свои особенности. В статье проанализированы и представлены читателю преимущества НПМ в предотвращении пыток и других видов жестокого обращений в государствах участниках Факультативного протокола. Кроме того, в научной работе обоснована авторская позиция о роли НПМ при конструкции демократического государства и гражданского общества. 

Ключевые слова: национальный превентивный механизм, Факультативный протокол к Конвенции ООН против пыток и других жестоких, бесчеловечных или унижающих достоинство видов обращения и наказания, Организация Объединенных Наций, демократия, гражданское общество.

The world started along the path to democracy by honoring its fundamental principle of recognizing and protecting the human rights and equality of every single human being. Human dignity became recognized as a core value of a democratic society that belongs to everyone and must be guaranteed in all[1].

The concept of a democratic society requires that State power is governed by the principle of rule of law, and respects, protects and fulfills the fundamental human rights and basic freedoms of every human being. A democratic society further establishes active oversight mechanisms, ensuring that its foundations are effectively protected[2].

Today, the ideals of democracy are universally recognized. They are one of the basic values of the United Nations[3]. Democracy creates favourable conditions for the protection and effective realization of human rights. Its values are reflected in the Universal Declaration of Human Rights[4] and further developed in the International Covenant on Civil and Political Rights[5], which enshrines the body of political rights and civil liberties that constitute the basis of true democracy.

These universal human rights documents have defined the principle of the prohibition of torture and cruel, inhuman, or degrading treatment or punishment as a fundamental principle[6]. Torture was recognized as the most serious crime against humanity, which is never justifiable – even when a country is in a state of war or faces any other emergency. Because of its non-derogable nature, the prohibition of torture has been recognized as a principle of customary international law.

To strengthen the protection against torture, the United Nations General Assembly adopted a comprehensive instrument on torture – the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment[7] (referred to as the Convention against Torture). This document imposes on the state party a number of obligations, including both a negative obligation not to subject anyone to torture and a set of positive obligations aimed at further protection and prevention. The Convention against Torture entered into force on June 26, 1987 and has since been ratified by 172 states.

However, despite several measures provided for by the Convention against Torture and the work of the Committee for the Prevention of Torture[8], the universal system of protection against torture still faces cases of torture and other forms of cruel, inhumane treatment.

Nineteen years later, the international community, emphasizing preventive action and strengthening the protection of persons deprived of their liberty, has come to believe that further action is needed to achieve the objectives of the Convention.

In this regard, to provide States with a practical tool to help them fulfill their obligations under customary international law and the Convention itself, the Optional Protocol to the Convention against Torture (OPCAT) was adopted[9]. The OPCAT has become unique in many ways:

first, it was the only international human rights treaty of an exclusively preventive nature;

second, it was the first document, along with the international monitoring body, that instructs national authorities – the National Preventive Mechanism (NPM) – to play a role in the implementation of this international treaty;

third, the document introduces a system of regular visits to places of detention by independent national and international experts.

According to the Czech scholar and lawyer P. Dubek, the adoption of the Optional Protocol pursued a far-reaching goal – the creation of a unique preventive system for persons in detention by opening places of detention for regular visits by external persons, an independent body – the National Preventive Mechanism[10].

Indeed, any genuine democracy must be equipped with mechanisms stable enough to provide its democratic foundations with real and effective guarantees. That is why several different review mechanisms and oversight bodies and institutions have been established at the national, regional, and universal levels[11]. In our opinion, the establishment of the NPM for the prevention of torture and other ill-treatment is one of these guarantees.

The obligation to establish national preventive mechanisms, enshrined in the Optional Protocol to the Convention against Torture (OPCAT), fundamentally changes the approach to the analysis and adoption of appropriate responses to torture and ill-treatment.

The National Preventive Mechanism, a unique oversight body that detects and investigates acts of torture and ill-treatment that undermine the very nature of democratic values, is undoubtedly a key component of a well-functioning democracy[12]. However, only an understanding of how the NPM actually works and what its philosophy is, will not make it possible to create a truly effective guarantor of human rights and democratic values.

Emphasizing the essential role of NPMs in the prevention of torture, the former UN High Commissioner for Human Rights, Zeid Ra'ad Al-Hussein, noted that "through regular visits to places of detention at the national and local levels, daily contacts with state authorities and deep knowledge of the context, NPMs play a key role in torture prevention, complementing the work of international bodies"[13].

The role of the NPM is not limited to the prevention of torture per se, as it can also improve the overall human rights situation in a given country and thus uphold its democratic foundations.

So, what are the defining functions of the NPM as a key component of sustainable development on the path to building a democratic society? In our opinion, the role of the NPM in promoting democratic values is seen as follows:

First, the NPM assists in the implementation of international law norms in national legislation and law enforcement practice. The NPM is empowered to submit proposals and comments to the relevant government authorities on existing and draft policies or legislation that it considers to be within its mandate[14].

In addition, the OPCAT requires that the NPM considers relevant UN standards when making its recommendations[15]. Thus, the NPM improves law enforcement practice.

Second, the NPM exercises a preventive function, different from the traditional reactive approach used by other monitoring bodies, such as an ombudsman or other human rights institutions. The mechanism conducts regular visits[16] to places of detention to protect against torture and other forms of ill-treatment. This allows the NPM to monitor the improvement or deterioration of conditions of places of detention and the treatment of detainees over a particular period of time.

Third, the NPM assists in the implementation of an additional supervisory function. The NPM should complement, not replace, existing oversight systems, and its establishment should not preclude the establishment or operation of other such complementary systems[17].

Fourth, the NPM allows the application of a broad rights-based approach. The NPM, unlike the office of the Ombudsman or a state body, is a unique mechanism consisting of experts, and specialists from various fields of knowledge[18]. In this regard, when developing NPM recommendations, priority is given to expert knowledge, sound evidence, and convincing arguments.

Fifth, the NPM makes recommendations to the relevant authorities. While traditional oversight bodies usually have the power to enforce their decisions, the NPM has no legal authority to make its observations, and is equipped “only” with a non-binding recommendation tool. Implementation of the recommendations of the NPM is ensured through a process of persuasion and cooperation, and not through a process of law enforcement.

Sixth, the NPM assists in the implementation of an institutional dialogue with both state bodies and persons in places of deprivation of liberty. The NPM establishes and maintains a constructive dialogue with state bodies and persons in places of detention. This function has a deterrent effect and thus strengthens the protection of detainees from abuse; and protects detainees and staff from reprisals[19].

Seventh, the NPM sets the objective informing the public about the situation in the field of ensuring human rights in places of detention. The NPM has unrestricted access to the places of detention and to information and premises in them. The right of the NPM to meet and talk with any person whose freedom is restricted, as well as with any staff without the presence of another person, is a very effective preventive tool.

The NPM can raise public awareness of human rights issues in places of deprivation of liberty by publishing an annual report of the NPM[20].

In addition, depending on the chosen model, the NPM may involve representatives of non-governmental organizations in the monitoring process. The involvement of civil society (e.g., experts and non-governmental organizations) can increase the public's understanding, legitimacy, and empowerment of torture monitoring and increase the impact of NPM recommendations.

Eighth, the NPM engages in the development of international cooperation in the field of human rights. The NPM should liaise with national and international oversight bodies such as treaty bodies, national monitoring and inspection bodies, non-governmental organizations, national human rights institutions, and other NPMs. The cooperation of NPMs can be widely used both in the national context and in terms of enhancing the implementation of international human rights obligations.

Thus, given the crucial role that NPMs play in a democratic society, the establishment of NPMs in states oriented towards democratic governance, in combination with other existing mechanisms and guarantees, will be an essential step towards creating a more humane and effective mechanism for the protection of human rights in places of detention; providing for the eventual elimination of cases of torture and other cruel, inhuman or degrading treatment or punishment against all persons deprived of their liberty.

From the journal “Democratization and Human Rights”, 1(97) – 2023

[1] For more on the concept of human dignity see: Human Dignity – Constitutional Value and Constitutional Law (Cambridge, UK: Cambridge University Press, 2015).

[2] Pavel Doubek. The National Preventive Mechanism. A Key Human Rights Component of Well-Functioning Democracy// Taiwan Journal of Democracy, Volume 15, No. 2. – Р. 165.

[3] https://www.un.org/ru/global-issues/democracy.

[4] Adopted by UN General Assembly Resolution 217 A (III) of 10 December 1948// https://www.un.org/ru/documents/decl_conv/ declarations/declhr.shtml.

[5] Adopted by General Assembly resolution 2200 A (XXI) of 16 December 1966 года//https://www.un.org/ru/documents/decl_conv/ conventions/pactpol.shtml.

[6] Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights.

[7] Adopted by General Assembly Resolution 39/46 of 10 December 1984// https://www.un.org/ru/documents/decl_conv/conventions/ torture.shtml.

[8] The Human Rights Committee is established under Article 17 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. See more: Committee Against Torture. Human Rights. Fact Sheet No. 17. World Campaign for Human Rights. //https://www.ohchr.org/sites/default/files/Documents/Publications/FactSheet17ru.pdf .

[9] Adopted by General Assembly resolution 57/199 of December 18, 2002// https://www.un.org/ru/documents/decl_conv/conventions/ torture_prot.shtml.

[10] See: Pavel Doubek. (2022) for details. Implementation of the Convention against Torture in Taiwan: Filling the Gap in the International Struggle against Torture? Asian Journal of International Law, 1-24. doi:10.1017/S2044251322000522.

[11] The relationship between torture and democracy is clearly demonstrated in D. Regali// Darius Rejali, Torture and Democracy (Princeton, NJ: Princeton University Press, 2007). – P. 21–23.

[12] Pavel Doubek. The National Preventive Mechanism. A Key Human Rights Component of Well-Functioning Democracy// Taiwan Journal of Democracy, Volume 15, No. 2. – P. 165.

[13] Torture Prevention. The role of national preventive mechanisms. A Practical Guide. Training Series, No. 21. Office of the United Nations High Commissioner for Human Rights. – New York and Geneva, 2018. – P. 3.

[14] Article 19(c) of the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment// https://www.un.org/ru/documents/decl_conv/conventions/torture_prot.shtml.

[15] Ibid.

[16] Article 1 of the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment// https://www.un.org/ru/documents/decl_conv/conventions/torture_prot.shtml.

[17] SPT, Guidelines on National Preventive Mechanisms, item 5.

[18] Article 18(2) of the OPCAT makes it clear that States Parties shall take the necessary measures to ensure that experts in the national preventive mechanism have the required capacity and expertise. Paragraph 17 of the SPT Guidelines further emphasizes that NPM members should collectively possess the knowledge and expertise necessary for its effective functioning".

[19] APT, Establishment and Designation of National Preventive Mechanisms, 16.

[20] Article 23 of the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment// https://www.un.org/ru/documents/decl_conv/conventions/torture_prot.shtml.