Academic News & Views: An OPCAT Focus on Immigration Detention

As part of the Australian Journal of Human Rights fascinating new Special Issue on the OPCAT, the matter of ensuring adequate coverage of immigration detention has come into sharp focus. In a brand-new article by Madeline Gleeson of the University of New South Wales titled ‘Monitoring places of immigration detention in Australia under OPCAT’, the author focuses on the challenges of making certain that immigration detention is effectively monitored in practice.

The parallels with Canada are illuminating. As has been highlighted in recent Canada OPCAT Project posts, even though Canada’s formal immigration detention estate is small, the Government frequently resorts to the use of provincial prisons for immigration detention purposes. Furthermore, unlike in Australia, there is currently no statutory inspection body for immigration detention in Canada, bar a temporary monitoring agreement with the Canadian Red Cross.     

Madeline Gleeson
Australian Journal of Human Rights – image copyright of the AHRC Centre at UNSW Sydney.

In her thought-provoking article Madeline Gleeson makes the essential point:

“…. while the government immediately claimed it as a ‘significant victory for human rights’ (Bishop and Brandis 2017b), the extent to which ratification of OPCAT will in fact mitigate the risks of torture and ill-treatment in places of detention will depend on how it is implemented. In the context of immigration detention in particular, there are significant challenges and controversies to be overcome if OPCAT is indeed to play the preventive role for which it is intended.”

For Australia these aforementioned challenges and controversies are several. In her article Madeline Gleeson embarks on a broad sweep of what might constitute immigration detention in Australia, including more typical facilities located within the country, but also focusing on less typical accommodation type settings, international transit zones in airports, escorts and transfers, so-called off-shore processing centres in Nauru and Papua New Guinea, and cloaked-in-secrecy detention at sea.

Madeline Gleeson
Maitland Gaol by OZinOH (2007).

For Canadian readers the author’s detailed discussion points to the wide range of potential immigration detention settings in any given country, itself an extremely informative exercise. All of these settings, she correctly argues, potentially fall within the scope of the OPCAT.   

Madeline Gleeson’s focus on the general features of an NPM also serves as a useful reminder of the wide potential array of functions of an effective NPM. In doing so, she examines two existing oversight bodies responsible for immigration detention in Australia, namely the Australian Human Rights Commission and the Commonwealth Ombudsman.

As Australia’s future NPM is likely to comprise a multi-agency body whose work is coordinated by the Commonwealth Ombudsman, the author makes various key recommendations aimed at ensuring its legal and functional independence as well as its efficacy as an institution. This advice merits a detailed reading, especially if, as predicted by this writer, Canada also opts for a multi-body NPM as its future mechanism under the OPCAT.    

As in Canada, Madeline Gleeson also notes that the Australian Red Cross has a long history of visits to immigration detention facilities across Australia through its Immigration Detention Monitoring Program. The writer notes: “The Red Cross’s engagement with the Australian government is confidential, focusing on identifying issues of humanitarian concern and providing advice on how to minimise harm for people in detention.” However, unlike in Australia, Canada currently has no other permanent oversight entity for its main immigration detention settings such as an ombudsperson-type body.

The final section of the author’s paper highlights several outstanding challenges relating to the monitoring of immigration detention in Australia. While these factors are to a certain extent Australia-specific in scope, several of Madeline Gleeson’s observations apply beyond its national borders to other current and future OPCAT States Parties such as Canada. These include that:

  • unfettered access to NPM monitors should be ensured in practice in terms of places, people and information;
  • the monitors should be able to address the root causes of potential abuses which may lie in official state policy (such as punitive immigration approaches);
  • and states should be open to independent scrutiny and criticism of their immigration policies, no matter how unpalatable the truth.

All of these lessons could have resonance in the Canadian context as a state which may one day get around to ratifying the OPCAT.

In a word, Madeline Gleeson has made both a very interesting and highly practical contribution to the Special Issue on the OPCAT, with several important lessons for the Canadian setting. With further articles to come in this excellent series of papers, please stayed tuned to the Canada OPCAT Project dial.  

Many thanks to Steven Caruana for his assistance in relation to this post.

The above article by Madeline Gleeson appears in the current issue of the Australian Journal of Human Rights, published on-line on 17 April 2019. The article can be accessed free-of-charge here.

Read an overview of other articles in the Special Issue on the OPCAT of the Australian Journal of Human Rights.  

Read more about the Canadian Red Cross Immigration Detention Report.

Examine the Concluding observations of the UN Committee against Torture from December 2018 concerning oversight of immigration detention in Canada.

Posted by mp in Australia, Immigration detention, NPMs, OPCAT, Oversight bodies

Making A Difference: Norway’s NPM

Have you ever wondered if NPMs are making a difference in practice? For many of us interested or otherwise engaged in torture prevention the above conundrum is a recurrent question. After all, if the sum total of any preventive work is at best negligible, or even worse, why waste the time and effort?

In its newly published 2018 Annual Report the Norwegian NPM takes a fresh look at this fundamentally important question, devoting a full chapter to gauging impact. Most positively, in four of its past five Annual Reports the NPM has retrospectively cast its eye over the year of activities to document effected change.

Even though Canada and Norway are quite different national contexts, not least in terms of size of geography and population, Norway’s industrious NPM has nonetheless advanced some illuminating insights into how one NPM is making a difference on the ground through its preventive work.

making a difference

As noted in these pages just a few months ago, Norway ratified the OPCAT in 2013 and designated the Parliamentary Ombudsman as the NPM. The NPM has been operating since 2014 and consists of an independent department within the Parliamentary Ombudsman, comprising a team of multi-disciplinary staff. Detailed information about the structure and operation of Norway’s NPM can be found in the 2018 Annual Report.

The Norwegian NPM has described in detail how it is making a difference in practice in chapter 5 of the 2018 report. In these pages it has sketched out the all-important process of follow-up to monitoring visits, as follows:

“After each visit, the NPM publishes a report describing its findings and making recommendations for preventing torture, inhuman and degrading treatment. Much of the preventive work begins after the reports have been published.

We ask all places we visit to provide written feedback on how the recommendations have been followed up within three months of the visit report being available.

The feedback we received throughout the year indicates that the institutions generally followed up the recommendations in a thorough manner. The majority of places have implemented numerous measures that play an important role in reducing the risk of inhuman and degrading treatment …

Certain recommendations require limited effort to follow up, while others are more challenging. This means that the NPM’s follow-up can sometimes continue over a long period, and at other times be concluded relatively quickly.” (49)

The report highlights the measured impact of the Norwegian NPM’s activities vis-a-vis specific thematic areas. These include the following:

  • Documenting the use of force in detention;
  • Preventing the use of coercive measures;
  • Ensuring the right to information can be exercised in practice;
  • Facilitating the participation of detainees in decisions which impact on them;
  • Improving the material conditions of detention;
  • Enhancing injury reporting procedures;
  • And minimizing resort to solitary confinement, isolation and segregation.

It bears noting that in 2018 a sizeable number of these gains were made in child welfare, health care and immigration detention settings. In one instance a child welfare facility was even temporarily closed due to allegations of abusive use of force.

Making a difference

As in Canada, resort to solitary confinement, isolation and segregation by different detaining authorities, including in prisons and health care settings, has been a significant cause for concern for the Norwegian NPM. In late 2018 the NPM also published a separate thematic report on the use of segregation in mental health care institutions, a summary of which is available in English.

In conclusion, the 2018 Annual Report of the Norwegian Parliamentary Ombudsman offers Canadian (and other) readers a very welcome insight into how decisive change can be effected in a range of detention settings and, it should be stressed, over a relatively short period of time. For those persons on the receiving end of such change, the positive impact ought not to be underestimated.

Visit the English version of the Norwegian NPM’s website.

Listen to an interview with the Norwegian NPM Director, Helga Fastrup Ervik, and learn more about the activities of her institution.

Read the current and past Annual Reports of the Norwegian NPM.

Read the summary of the December 2018 report, Segregation in mental health care institutions – risk of inhuman treatment.

Posted by mp in Health care, Norway, NPMs, Places of detention, Prisons, Psychiatric detention, Solitary confinement

COPCAT Shorts – Mistreatment & Violence against Women during Reproductive Health Care and Childbirth

Mistreatment and violence against women during reproductive health care and facility-based child birth is a serious violation of women’s human rights which occurs across all geographical and income-level settings. In a statement published in 2014, the World Health Organization reported that disrespectful and abusive treatment occurs during childbirth in facilities and includes “outright physical abuse, profound humiliation and verbal abuse, coercive or unconsented medical procedures (including sterilization), lack of confidentiality, failure to get fully informed consent, refusal to give pain medication, gross violations of privacy, refusal of admission to health facilities, neglecting women during childbirth to suffer life-threatening, avoidable complications, and detention of women and their newborns in facilities after childbirth due to an inability to pay.”

The Special Rapporteur on violence against women, Study on mistreatment and violence against women during reproductive health care with a focus on childbirth, April 2019.

UN violence against women expert
Dubravka Simonovic, Special Rapporteur on violence against women presents her report at the 38th Regular Session of the Human Rights Council, 20 June 2018
– UN Photo/Jean-Marc Ferré

The Special Rapporteur on violence against women, Dubravka Šimonović has identified the issue of mistreatment and violence against women during reproductive health care and childbirth as the subject of her next thematic report to be presented at the 74th session of the General Assembly in September 2019.

Canadian readers will vividly recall that the UN Committee against Torture expressed concern about the forced sterilization of Indigenous women and girls during its examination of Canada in November 2018.  

The UN Special Rapporteur on violence against women is seeking views on four questions relating to the issue of mistreatment and violence against women during reproductive health care and childbirth. Canadian civil society is kindly invited to have its say on this key issue.

The deadline for submissions is 17 May 2019. Please see below for more information.

Read more about the UN Special Rapporteur on violence against women’s new study.

See what the UN Committee against Torture said about the forced sterilization of Indigenous women and girls in Canada in 2018.

Read more about the UN Special Rapporteur on torture’s recently launched consultation on domestic violence.

Posted by mp in Absolute prohibition of torture, Health care, UN Special Rapporteur, UNCAT

The OPCAT – A Stuck Record?

Readers of a certain age with fond memories of buying vinyl LPs and 7” singles at Woolworths, HMV or Tower Records will vividly recall the immense annoyance of the phenomenon known as the ‘stuck record’. You will no doubt remember that highly prized The Smiths or Roxy Music record that stuck and repeatedly jumped mid-song, obstinately refusing to budge and play all the way though, without an emphatic prod of the stylus?

In truth, this same vexation of yore is more than just a little bit like the OPCAT ratification process in Canada. Unless, someone in the room applies some heft to the process, the needle is unlikely to move much further forward, if at all.

Therein lies the rub. If not from the Canadian Government, it is difficult to see where this shunt will come from at the domestic level.

After all, just three or so years ago the then Canadian Minister of Foreign Affairs, Stéphane Dion, announced that the OPCAT ‘will no longer be optional for Canada in the future”’.  But what since?

stuck record
Record Player – Robert (2014).

The great paradox, it should be said, is that a wide swathe of the international human rights community believes that Canada should ratify the instrument. It is deemed to be ‘a good thing’. Yet next-to-nothing appears to be happening in practice on the home front to advance the process.

In December 2018 the Canada OPCAT Project met representatives from Global Affairs Canada, the lead government department where the OPCAT file currently sits. The latter reassured this writer that there was movement behind the scenes. Yet without the placement of any such OPCAT related information into the public domain how can we really be certain?

Moreover, despite a pledge made to the UN Committee against Torture in Geneva in November 2018 that domestic civil society and Indigenous communities would be consulted on the domestic ratification process, over the past four-and-a-half months nought has seemingly happened in practice to make good on this assurance.

In contrast to the domestic dragging of feet, international calls on Canada to ratify the OPCAT continue undiminished. Just this past week the UN Special Rapporteur on the rights of persons with disabilities concluded her 11-day April 2019 mission to Canada with a recommendation that Canada should ratify the OPCAT.

stuck record
Catalina Aguilar Devandas, Special Rapporteur on the rights of persons with disabilities – UN Photo / Jean-Marc Ferré

In December 2018 the UN Committee against Torture urged that Canada should complete the process and, in so doing, consult with Canada’s third sector. To date, neither recommendation has apparently been implemented domestically.

Just a couple of months earlier, the Canadian Government itself responded to its May 2018 Universal Periodic Review by stating before the UN Human Rights Council in Geneva that it would consider the ratification of the instrument. During this UPR process some 27 different countries advanced recommendations that Canada should either ratify the OPCAT or consider its ratification.

Finally, upon the conclusion of a mission to Canada in April 2018 the UN Special Rapporteur on violence against women, Dubravka Šimonović, also recommended the ratification of the OPCAT.

All of this in the short space of a year.

Let it also not be forgotten that, as far back ago as 2006, Canada first used the pledge of OPCAT ratification during its candidacy for the UN Human Rights Council, a pledge unfulfilled to the present day, some 13 years later.

So, does the Canadian OPCAT ratification process bring to mind that veritable stuck record in that we are hearing a track that never seems to move forward? Most likely it does.

And quite unlike your favourite Smiths or Roxy Music record of old, the seemingly open-ended OPCAT refrain of the Canadian Government is no longer even remotely interesting or entertaining, some 13 years after it began.

Read more about Canada’s open-ended OPCAT ratification process.

Discover how the OPCAT might be implemented in Canada.

Read why Canada’s Correctional Investigator deems the OPCAT an important human rights instrument for Canada.

Posted by mp in OPCAT, Ratification

Top UN Disability Expert Urges OPCAT Ratification & End to Disability Based Deprivation of Liberty

A leading United Nations disability expert concluded an 11-day mission to Canada on Friday by urging the country to ratify the OPCAT in a broader focused, critical End of Mission Statement. In the same document the UN expert expressed concern about the over-representation of persons with disabilities in adult and youth prisons and their deprivation of liberty on the basis of disability in healthcare settings.

The Special Rapporteur on the rights of persons with disabilities, Catalina Devandas Aguilar, wound up her extended mission to Canada in the nation’s capital, Ottawa, on 12 April 2019, having visited cities and communities in Ontario, Québec, New Brunswick and Nova Scotia.

disability expert
Catalina Devandas Aguilar, United Nations, Special Rapporteur on the Rights of Persons with Disabilities during A Day For All, Event. 3 December 2015. UN Photo / Jean-Marc Ferré

In the statement the UN disability expert highlighted an array of concerns, including vis-à-vis Canada’s legal and policy framework. In this connection she urged Canada to ratify the OPCAT as well as other key international human rights instruments.

In relation to the wider issue of deprivation of liberty Catalina Devandas Aguilar advanced various concerns, not least concerning prisons. She stated:

“I am very concerned about the overrepresentation of persons with disabilities, particularly those belonging to indigenous or other minority communities, in both prisons and the juvenile justice system. I have also received alarming information that persons with psychosocial disabilities are diverted to mental health courts for minor offences where they are subjected to higher penalties and stricter regimes.”

More generally, the UN Special Rapporteur expressed disquiet about deprivation of liberty on the basis of disability in Canada.

In January 2019 the UN disability expert issued a report, ‘Rights of persons with disabilities’, which underscored the widespread deprivation of liberty of persons on the basis of impairment:

“The deprivation of liberty on the basis of impairment is a human rights violation on a massive scale. Persons with disabilities are systematically placed into institutions and psychiatric facilities, or detained at home and other community settings, based on the existence or presumption of having an impairment. They are also overrepresented in traditional places of deprivation of liberty, such as prisons, immigration detention centres, juvenile detention facilities and children’s residential institutions. In all these settings, they are exposed to additional human rights violations, such as forced treatment, seclusion and restraints.” (§85)

Disability expert
Abandoned psychiatric institution by Michael Hummel (2009).

The UN disability expert witnessed glimpses of this depressing global reality during her mission to Canada, voicing the following concerns:

“Provincial and territorial legislation across Canada provides for the involuntary hospitalization and treatment of persons with psychosocial disabilities, in contradiction to article 14 and 25 of the CRPD. For example, the Mental Health Act of British Columbia contains very broad criteria for involuntary admissions and, once detained, a person can be forcibly treated without their free and informed consent, including forced medication and electroconvulsive therapy.”

As highlighted on this website a few weeks ago, a critical report by the Office of the Ombudsperson of British Columbia cast a long, dark shadow over the efficacy of fundamental detention safeguards in the province’s mental health institutions. In a word, they have been mostly ignored in practice.

The UN expert’s End of Mission Statement continues:

“I have been informed that the rates of involuntary admissions and community treatment orders are increasing across Canada. Similarly, the number of inpatient beds in psychiatric hospitals, particularly in forensic units, is also increasing. In addition, different interlocutors told me that there is a significant number of persons with psychosocial disabilities who no longer need to be in the hospital but cannot leave due to the lack of community-based alternatives.”

“I urge the provincial and territorial governments to transform their mental health systems to ensure a rights-based approach and well-funded community-based responses, ensuring that all health care interventions are provided on the basis of free and informed consent.

“I have also noticed that there is a lack of independent monitoring of mental health facilities and institutions. I would like to recommend the provincial and territorial governments to establish independent monitoring mechanisms for centers of deprivation of liberty, including hospitals and institutions.”

Several of the above concerns regarding the deprivation of liberty on the basis of disability and use of coercion were also underscored by the UN Special Rapporteur on the right to health during a November 2018 mission to Canada.

In a report issued earlier this year the Canada OPCAT Project also highlighted the lack of independent oversight of such institutions, a point echoed by the UN Committee against Torture during its November 2018 examination of Canada.

Whether Canada will act on these collective concerns, including by ratifying the OPCAT, remains to be seen. Regrettably, there is little to suggest that OPCAT ratification is a political priority for the Canadian Government at the present moment, despite its past assertions to the contrary.  

On a slightly more positive note the UN Special Rapporteur concluded her End of Mission Statement by emphasizing the following:

“As a highly-developed nation, Canada still lags behind in the implementation of its obligations under the Convention on the Rights of Persons with Disabilities. There are significant shortcomings in the way the federal, provincial and territorial governments of Canada respect, protect and fulfill the rights of persons with disabilities. Notwithstanding, the country has the potential to undertake a major transformation and fully embrace the human rights based approach to disability introduced by the Convention. The various pilot initiatives and good practices in place could, if adequately scaled up, promote systemic change for persons with disabilities in Canada.”  

The UN Special Rapporteur’s full report on her visit to Canada is scheduled to be presented to the UN Human Rights Council in March 2020.

Finally, Canadian civil society actors may also wish to take note that, in August/September 2019, the UN Committee on the Rights of Persons with Disabilities will draft the List of Issues Prior to Report in relation to Canada and its second periodic review. This moment will be a timely opportunity for Canadian civil society to indicate to the UN Committee the key issues to which Canada should be responding in its subsequent report. The Canada OPCAT Project will keep readers posted of any developments in this respect.

Read the End of Mission Statement.

Read the UN Special rapporteur report focused on ending deprivation of liberty on the basis of disability. Lire le rapport en français.

An alternative version of the report designed for wider distribution is also available.

Explore the Special Rapporteur’s dedicated website.

Visit the related OHCHR website on Catalina Devandas Aguilar’s work.

Posted by mp in Health care, OPCAT, Places of detention, Prisons, Psychiatric detention, UN Special Rapporteur, UNCRPD

Academic News & Views: Special Issue on the OPCAT

“OPCAT has the effect of making places of detention more transparent. However, transparency is not, in itself, this treaty’s end goal. OPCAT exists ‘to prevent torture and other cruel, inhuman or degrading treatment or punishment’. In other words, the ratification and implementation of OPCAT must contribute to the eradication of mistreatment in all of Australia’s places of detention. If it does not achieve that aim, it will have failed.”

Foreword to the Special Issue on the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) – Bronwyn Naylor, Edward Santow, Sophie Farthing, Penny Weller & Stan Winford, Australian Journal of Human Rights, 4 April 2019.

If one interchanged the reference to Australia for Canada in the above quotation, the ultimate purpose of the OPCAT as an international torture-prevention instrument would still remain the same.

Yet, as highlighted in a recent article on the implementation on the OPCAT in Australia, the latter has progressed much further in doing so than its Canadian counterpart.

Even so, the current Special Issue on the OPCAT in the brand-new edition of the Australian Journal of Human Rights merits a closer read by both Australians and Canadians alike. Contained therein are various interesting OPCAT insights as well as a number of lessons which might be transposed from the Australian into the Canadian context.

The Foreword to the Special Issue on the OPCAT, from which the above introductory quotation is taken, kicks off with a general overview of the issue and the three main contributing articles comprising the issue.

Special Issue
Australian Journal of Human Rights – copyright of the AHRC Centre at UNSW Sydney.

The first article, penned by Bronwyn Naylor and Stan Winford from RMIT University in Melbourne, is titled ‘Implementing OPCAT through prison monitoring: the relevance of rehabilitation’. The authors argue that the broad scope of the preventive mandate under OPCAT clearly permits the inclusion of rehabilitation and that various NPMs have, to date, included rehabilitation in their OPCAT monitoring activities.

In making this argument, the authors draw references to the rehabilitation-focused monitoring activities of NPMs in France, New Zealand, Norway and the United Kingdom. Her Majesty’s Inspectorate of Prisons in England and Wales is discussed in some detail in this connection, particularly its set of monitoring standards known as ‘Expectations’. The article concludes:

“Ratification of OPCAT requires establishment of comprehensive monitoring frameworks to prevent ‘torture and cruel, inhuman and degrading treatment’ in places of detention. As Australia begins this process, it is important to ask the question: To what extent should monitoring by NPMs address the rehabilitative aspects of imprisonment? We have argued here that it is critical that they do so.” (p. 13)

For Canadian readers perhaps less familiar with the potential rehabilitative scope of the OPCAT at the national level, the contributors advance a strong case for why such an approach should be the case.

Special Issue
Detention by Matt (2009).

The Special Issue on the OPCAT continues with an article by Penelope Weller, also of RMIT University in Melbourne, titled ‘OPCAT monitoring and the Convention on the Rights of Persons with Disabilities’. Like Canada, Australia is a State Party to the UN CRPD and thus obliged to work towards its implementation in practice.

The writer contends that Australia’s preventive monitoring regime under OPCAT must consider and take account of the CRPD and the particular experiences of people with disabilities in places of detention. In this latter connection she writes:

“People with disabilities are more likely than others to live in institutional settings such as social care, disability, health and mental health homes and hospitals. While these places are established to provide care, they are also places where people may be deprived of their liberty and are at risk of experiencing violence, abuse and discrimination. Persistent revelations about incidents in aged care homes and psychiatric facilities confirm the ever-present risk of violence and abuse in such places … People with disabilities are also disproportionately represented in traditional places of detention, such as prisons and police cells, and similarly disproportionately at risk of detention and abuse in such settings.” (p.2)

As a recent investigation into acts of abuse in a healthcare setting in New-Brunswick revealed, the above risk is very real. Moreover, the frequent disregard in practice of fundamental safeguards in such healthcare settings, as highlighted in a March 2019 report of the British Columbia Ombudsperson, potentially heightens such risk. Penelope Weller makes a well-reasoned argument why the scope of OPCAT Article 4 should include a wide array of healthcare settings in Australia, a line of argument which would equally apply to the Canadian context.  

In this same regard the writer also argues that a reading of the OPCAT in light of the CRPD suggests that any deprivation of liberty based on disability-related discrimination, as defined by the Article 14 of the CRPD, may be construed as torture. Moreover, as persons with disabilities may suffer a diversity of abuses in healthcare settings, including seclusion, restraint, involuntary treatment and sexual assault, there exists the need to incorporate such disability awareness into OPCAT monitoring principles, methods and practices.

In a word, as healthcare deprivation of liberty contexts are not the same as prisons or police stations, a different monitoring approach is required under the OPCAT and CRPD, the possible specificities of which the author outlines in some detail. Penelope Weller concludes her unique article by stating: “Infusing OPCAT with the CRPD principles will produce a robust preventive monitoring approach.” Even though the writer’s geographic focus is Australia, the lessons she draws from the CRPD and OPCAT might equally apply to North America.

Special Issue
Centré de détention de Venna by Sara Prestianni (2009).

In the final article in the Special Issue on the OPCAT two very well-known British academics, Rachel Murray and Nick Hardwick, reflect on the question, ‘Regularity of OPCAT visits by NPMs in Europe’.  

The paper examines how NPMs in Europe have interpreted the concept of ‘regular’ visits in the hope that this exercise will be of assistance to those involved in the establishment of Australia’s NPM. Based on a combination of publicly available reports and survey materials, the article is highly interesting.

For Canada the task of ensuring both coverage and regularity of visits by its future NPM over a potentially vast geographic area, some two-and-a-half times larger than the European Union space, will not be insignificant.

The authors note from the outset that the concept of NPM regularity has been under-explored in the published literature on the OPCAT, somewhat surprisingly so it must be said. On the issue of regularity they comment:

“By July 2018, 38 NPMs had been designated in Europe, the largest number in any region. As is seen below, the practice of these NPMs varies considerably, with a number of factors coming into play when one is trying to identify what is regular, and the extent to which, even if one could define regularity, any NPM is fulfilling this requirement.” (p.2.)   

Nonetheless, the authors skilfully dissect the concept of regularity, discussing its definition, the types of NPM visits, and the notion of frequency. They also discuss in detail the different factors determining regularity, including UN Subcommittee on Prevention and other international guidance as well as the NPMs’ own criteria. Unsurprisingly, geography, NPM resources, organizational mandate and the depth and length of visits all impact on regularity to varying degrees. The authors conclude:

“Across the world NPMs have been established at great speed. In Europe alone, in little more than a decade, 38 NPMs have been designated. Every year they are carrying out hundreds of independent preventive visits to places of deprivation of liberty, which in many cases were hidden from scrutiny before. The very speed of their development has meant there is relatively little detailed evidence of how NPMs have gone about their task and ‘what works’. This limits the opportunity for new NPMs, including that in Australia, to draw on the experience of those that have gone before. The paper explored one of the most basic questions facing NPMs: how NPMs understand and apply the requirement to undertake ‘regular’ visits.” (p.20)

Despite such limitations, Rachel Murray and Nick Hardwick offer the Australian/ Canadian reader some very useful general conclusions. In a word, regularity means different things to different organizations and it is not always equated with frequency. As such, the authors recommend that a newly established NPM in Australia (or Canada) might wish to consider how it views regularity.

Special Issue
Detained abstracts 1 by Greenmonster (2010).

In addition, NPMs routinely take into consideration a number of factors when visiting a given facility and not just the frequency or the length of time which has passed since the last visit. Examples of such factors would include: the size of the team; the availability of resources; the overall magnitude of detention facilities to be visited in any given country; the different types of visits (announced or not); and the receipt of complaints as an indicator of potential problems in a given facility. These same factors will unquestionably impact on the work of the future Canadian NPM, as it determines its program of monitoring activities.

In conclusion, the Australian Journal of Human Rights has done an excellent job in compiling some extremely interesting and unquestionably cutting-edge papers on the topic of OPCAT. Even though their focus may lie outside the borders of Canada (Australia and Europe), the issues under discussion (rehabilitation, healthcare settings as deprivation of liberty, and regularity of visits) are as equally relevant in the Canadian context, perhaps more so at a time when more of us could be thinking longer and harder about the potential application of the OPCAT in the country.

Finally, as this short review post barely skims the surface of the three excellent academics articles, readers are warmly encouraged to refer to the full articles for more in-depth information about the very useful ideas advanced in them.  

***Many thanks to Rachel Murray and Steven Caruana for their assistance in relation to this post.

The above articles appear in the current issue of the Australian Journal of Human Rights, published on-line on 4 April 2019. The articles can be accessed via Shibboleth or OpenAthens or can be purchased via this link.

A further article in the OPCAT Special Issue on immigration detention can be read here.

If you have written a recent academic article on the OPCAT, or a related topic, with a potential ‘Canada angle’ and would like an ‘Academic News & Views’ mention, please let us know.

Read earlier ‘Academic News & Views’ posts, including an article by Marie Steinbrecher on NPM independence and effectiveness and by Professor Juan Mendez on a healthy prison environment.

Explore what the UN Special Rapporteur on the rights of persons with disabilities has recently said about deprivation of liberty on the basis of impairment.

Posted by mp in Australia, Implementation process, NPMs, OPCAT, Places of detention

COPCAT Shorts – Domestic Violence: A Veritable Scourge of Inhumanity

“Similar to war, domestic violence is a veritable “scourge” of inhumanity, traumatizing countless children, women and men on a daily basis, and brutalizing human society for generations to come. Contrary to war, however, domestic violence is still largely considered to be a “private matter”, a social taboo to be dealt with at the discretion of the perpetrator in the perceived legal “black hole” of the home. As long as a substantial part of the world’s population is oppressed, abused and even murdered with impunity by their own family members, the promises of the Universal Declaration of Human Rights and the Sustainable Development Goals will remain a far cry from reality. Consequently, though domestic violence may occur in the private sphere, it must be regarded as a global governance matter of inherently public concern.”

UN Special Rapporteur on torture, Domestic Violence and the Prohibition of Torture and Ill-Treatment, 5 April 2019.

Corruption and torture report
Nils Melzer, UN Special Rapporteur on torture, UN Human Rights Council 1 March 2017 (copyright UN Geneva/Jean-Marc Ferre).

The UN Special Rapporteur on torture, Nils Melzer, has opened up a thematic consultation on the phenomenon of domestic violence from the perspective of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment.

In his upcoming report on this topic to the UN General Assembly, the Special Rapporteur aims:

(1) To apply the substantive elements of the definition of torture to a broad range of practices commonly understood to fall within the notion of domestic violence;

(2) To analyze the legal obligations arising for States under the prohibition of torture with respect to domestic violence;

(3) And to make recommendations with a view to improving the protection against torture in the context of domestic violence.

Canadian human rights actors can contribute to this crucial public consultation by answer three sets of questions. Please help to put domestic violence in Canada in the international spotlight by responding to the UN Special Rapporteur on torture’s open consultation.

The closing date for responses is 15 May 2019.

Read more about the UN Special Rapporteur’s consultation on domestic violence.

Read Professor Melzer’s recent report on combating corruption and torture.

Read his comments from October 2018 on the danger of backsliding on torture.

Posted by mp in Absolute prohibition of torture, UN Special Rapporteur on Torture, UNCAT

If A Picture Paints A Thousand OPCAT Words…

If a picture does indeed paint a thousand words, it is notable that the torture prevention world remains distinctly word top-heavy.

While NPMs and other detention monitoring bodies typically spill ink on paper thousands and thousands of words over, describing their vexing findings and advancing corrective recommendations, the use of pictures in the form of electronic video imagery is not as commonplace as one might have expected.

In an Internet and social media-driven world this reality is remarkable. NPMs and other oversight entities routinely issue a range of reports, unleashing them into the public domain most commonly through accompanying backgrounders, press releases and Tweets. What is perhaps anything but universal, is the use of animation and information video clips as a means of propagating key findings and recommendations.

The video clip below from the United Kingdom is a relatively rare illustrative case in point. Of the UK NPM’s constituent 21 bodies, the Criminal Justice Inspection Northern Ireland exercises oversight over prisons in the province. In late November 2018 the mechanism issued a joint report with several other members of the UK NPM of an unannounced inspection visit to Maghaberry Prison earlier in the year. Brendan McGuigan, the Chief Inspector of Criminal Justice in Northern Ireland, took to video to spell out the key findings of the report.

Most encouragingly, the Chief Inspector can routinely be seen doing so in relation to the institution’s other key reports.

The Paraguayan NPM, Mecanismo Nacional de Prevención de la Tortura, has also produced a series of video clips highlighting both its visits and general preventive activities. Please see the following clip about mental health detention in Asunción.

The Kazakh NPM, the National Commissioner for Human Rights, has publicized its more general detention monitoring activities through two video clips (in Russian), which can be watched here.

The Senegalese NPM, l’Observateur national des lieux de privation de liberté, has similarly produced several promotional videos.

That said, not too many other NPMs appear to be breaking new ground in relation to the dissemination of their annual-, thematic- or visit reports in such a manner or even publicizing their OPCAT-related monitoring activities. If such animation or video clips exist in sizeable numbers, then the Canada OPCAT Project could not find them!

Take, for example, the respected French NPM, Controller General of Places of Deprivation of Liberty, which published its 2018 Annual Report this past week on 27 March 2019. The French NPM has succeeded in publishing yet another solid yearly report, albeit one whose key recommendations might have been reinforced through some form of social media/website video clip.

Similarly, as discussed in these pages, in late January 2019 the UK NPM published its Ninth Annual Report, seemingly wholly unaided by any such video clip fandangle. The NPM list goes on.

Despite the more traditional approach of detention monitors to promoting their reports and wider activities, resort to electronic video imagery is unquestionably worth considering.

This past week the Queensland Ombudsman in Australia issued a report into an investigation into a riot in a youth detention facility. As was noted in a recent article, the Queensland Ombudsman may become part of the country’s future NPM. The report was titled The Brisbane Youth Detention Centre report: An investigation into the management of young people at Brisbane Youth Detention Centre between November 2016 and February 2017 and, unusually, its publication was accompanied by a helpful animation clip, which readers can watch below.

Even though this super little video clip would never win any glittering prizes at Cannes, it achieves exactly what it sets out to do. After watching the three-minute or so clip, the viewer comes away with a good insight into the thrust of this newly published report.

Meanwhile back in Canada, not as yet part of the ever-growing OPCAT family, a few weeks ago this website threw a spotlight on an excellent report by the Ombudsperson of British Columbia. The report cast a long, dark shadow over the efficacy of fundamental detention safeguards in the province’s mental health institutions. If you did not have time to read the report, you could have watched the following animated video clip (on the bus or train traveling to work for example). The clip successfully captures the gist of the report in less than two minutes.

Having said that, the use of the moving image to complement the static word appears to be a new approach for the Ombudsperson of British Columbia.

Somewhat surprisingly, other Canadian oversight bodies do not appear to be following suite, be it for reasons of cost, time or in-house expertise or perhaps even skepticism about the added value of resorting to such tools.

Take, for example, the recently published joint report by the Office of the Correctional Investigator and Canadian Human Rights Commission titled Aging and Dying in Detention. There was not an accompanying video clip in sight.

Similarly, a February 2019 report of the Ombud New-Brunswick titled Failure to Protect, focused on the deliberate physical abuse of patients in a care facility in the province. The report was also not accompanied by any such digital promotional materials.

The two emerging reports from out of the joint investigation of the Manitoba Ombudsman and Manitoba Advocate for Children and Youth into the use of pepper spray and solitary confinement in youth correctional facilities in the province, as highlighted on this website, adopted the same standard promotional approach: a report accompanied by a press release.

While all of the above are very well presented, expertly written reports, could the size of their respective media splashes or public outreach have been greater with the use of a cleverly produced animation or information clip? In an era when ever greater numbers of us are addicted to the Internet and social media and are seemingly developing ever shorter attention spans, the use of such electronic Internet and social media tools might have a useful practical resonance.

After all, throwing a bright spotlight onto what is happening in detention is at the very heart of the independent oversight function, arguably more so in view of the OPCAT.

Civil society – a step ahead?

Unsurprisingly, civil society has long since understood the power of digital imagery. The Association for the Prevention of Torture, for instance, has had its famous promotional OPCAT animation clip transformed into an impressive 21-language versions. Thus, whether you are a Thai, Hungarian or Arabic speaker, you can learn more about this key torture prevention instrument in your language of choice (check them out here). As a result, French-speaking Canada, Belgium or Switzerland are all able to watch the following OPCAT animation in their French language of choice.

This author’s personal favourite promotional OPCAT video clip was produced by the highly respected Irish NGO, the Irish Penal Reform Trust. It was also featured in an article on this website earlier this year, focusing on Ireland’s much anticipated, but long delayed ratification of the OPCAT.

Whether it is the poignant music, the simple but ingenious design, the stress on the acute vulnerability of certain categories of persons in detention, or the Irish Government’s inexcusable dragging of feet to ratify the OPCAT,  the IPRT’s animated video clip pushes all the right buttons as a promotional tool. If you exchanged Ireland for Canada, the thrust of the clip would arguably be equally as powerful in the North American context.

Regardless of the Irish (and equally the Canadian) Government’s unimpressive foot-dragging on OPCAT ratification, the use of animation and other information clips remain a persuasive tool, whether for projecting an advocacy campaign or just a simple point of information. Furthermore , they represent a surprisingly under-utilized means of conveying to a wider audience the key content and any related recommendations of a given report. For detention monitors of all stripe they remain an avenue meriting further exploration.

Even the UN Subcommittee has got in on the act!

The work of the UN Subcommittee on Prevention of Torture has been showcased in the following OHCHR animated video. However, to date, none of its published reports (annual, country visit or advisory visit focused reports) have been subjected to the same treatment. Please see for yourself!

Thanks for reading.

Do you know of any video clips commissioned by NPMs or other detention monitoring bodies? Please contact us and we will add them to this post.

Check out Electronic OPCAT for other related torture prevention videos.

Please also see the Canada OPCAT Project’s gallery of static torture prevention images.

Posted by mp in NPMs, Oversight bodies, Video clips

OPCAT in a Land Down Under

If this writer could not resist the temptation of employing the much-loved Men At Work ‘Down Under’ song reference in this post’s title, then you too will hopefully not resist reading the current edition of the ICPA External Prison Oversight and Human Rights Network newsletter with its Australian OPCAT focus.

As featured in an earlier article, with a spotlight on the current OPCAT implementation process in Australia the newsletter has considerable relevance for the Canadian context with its lessons of good related practice. This fact rings especially true at a time when Canadian government authorities at all levels have apparently been discussing potential OPCAT implementation among themselves, albeit lamentably with practically no one else, not least civil society.

As a fellow federal state, the parallels between Australia and Canada are not insignificant. While Australia has 9 jurisdictions (one federal, six state and two territorial in scope) compared with Canada’s 14, the distinct challenges of implementing the OPCAT in a multi-jurisdictional state structure still have to be met.

Down Under
Maitland Gaol by OZinOH (2007).

Even though reservations have been expressed in these pages about Canada adopting a multi-body approach to OPCAT implementation (please see the Canada OPCAT Project discussion paper, Instituting an NPM in Canada), Australia appears to be forging ahead in this direction, emulating countries like the United Kingdom, New Zealand and the Netherlands.

Australia ratified the OPCAT in December 2017, postponing the obligation to institute an NPM by up to three years through a Declaration under OPCAT Article 24. As a result, the country has until January 2022 at the latest to put in place its NPM.

The current ICPA newsletter offers readers a deep dive into the OPCAT implementation process in Australia through the contributions of seven leading human rights academics and detention monitors. Professor Bronwyn Naylor of RMIT University in Melbourne kicks off the Australian OPCAT discussion, offering an informative sweep to date of the overall implementation process in the country. In doing so, she comments on the task of designating multiple bodies as the future NPM:

“The implementation process in Australia therefore involves identifying all relevant places of detention, and all existing monitoring bodies, and – probably most challenging – decisions at state, territory and federal level about whether and how existing bodies could take on the OPCAT monitoring role, and what might be needed to make them OPCAT compliant …

Some of the Australian monitoring bodies, such as the prisons inspectorates and Ombudsman offices, have some or most of the OPCAT characteristics. However across Australia there are both gaps in coverage, and overlapping powers. There are also inconsistencies across states and territories, with varying degrees of independence and effectiveness of monitoring bodies.”

While a similar auditing process took place in Canada in 2017-2018, relatively little information about it has been allowed to seep into the public domain.

Down Under
Ground Floor Maitland Prison by Bill Collison (2012).

In contrast, according to Professor Naylor, in Australia the process of identifying places of detention and establishing a baseline of the extent to which existing oversight bodies are currently OPCAT-compliant is being carried out by an arms-length government body designated to coordinate OPCAT implementation in the country, the Commonwealth Ombudsman. Unlike in Canada, this study is to be made public in an upcoming 2019 report.

Contemporaneously the Australian Human Rights Commission has been conducting a broad constituency consultation into the role of civil society in the implementation of the OPCAT as well as the later operation of the NPM (please visit the institution’s OPCAT Consultation Page). If Australia is willing and able to open up its OPCAT consultation process, Canada’s closed, locked-down process remains all the more perplexing.

In a nutshell, even though the Australian OPCAT consultation process has not been without certain criticism, it remains light years ahead of Canada in terms of its openness, transparency and inclusiveness. Professor Naylor’s article offers an excellent overview of this process up to the current point in time.

Steven Caruana, the Inspections and Research Officer at the Office of the Inspector of Custodial Services in Western Australia, and himself no stranger to these Canada OPCAT Project pages, convincingly argues how the OPCAT is being used to strengthen existing oversight bodies in the country, highlighting various illuminating examples thereof. He writes:

“These next two years are crucial times for the advancement of correctional oversight in Australia. Effective and substantial compliance with the OPCAT, in the fitting words of the Australian Human Rights Commissioner, Ed Santow, ‘…could be the single most positive development this decade in improving conditions in all Australian places of detention.’ State and Territory governments will need to turn their attention to the requirements of OPCAT. They will need to consider the most suitable existing agencies and what resourcing and legislative requirements will be necessary for them.

Equally important, Australian oversight agencies will need to proactively assess whether their mandate and methodologies are compatible with OPCAT.”  

Thus, OPCAT ratification is being used as a moment of introspection by the government authorities and certain existing oversight bodies, which is most encouraging.

Down Under
Light in the Darkness by Drew Douglas (2007).

In her contribution to the OPCAT discussion, Victorian Ombudsman Deborah Glass extends the above analysis to her own institution, noting:

“When, in 2017, the Commonwealth Government announced that Australia would ratify the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), people might have assumed it would be business as usual in Victoria…

For those of us working in this area, however, it was clear that OPCAT would require change. It introduces more rigorous standards for local inspections of places of detention by National Preventive Mechanisms (NPMs). By opening detention to United Nations scrutiny, it also demands much closer attention to international standards for the treatment of detainees.”

Citing several so-called pilot OPCAT investigations undertaken from 2017 onwards, the author brings to life Steven Caruana’s key point that the OPCAT can be harnessed to improve and enhance existing oversight activities on the part of detention monitoring bodies.

In a further illuminating article, Rebecca Minty and Holly Fredericksen of the Office of the Inspector of Correctional Services in the Australian Capital Territory, underscore how the OPCAT text was used to inspire the drafting of the statute which brought into life this oversight body in 2017:  

“The legislation to establish the ACT OICS was developed to reflect the requirements and expectations around the establishment of a national preventative mechanism under the OPCAT. This resulted in the creation of a preventative focused independent statutory authority with all the powers and guarantees required in OPCAT, for example, the right to access to any place of detention at any time, the power to speak with detainees and staff, and the right to access documents including registers. Furthermore, when conducting an examination and review, the ICS Act requires that the review team include those with expertise relevant to the subject matter being reviewed, and all reports from examinations and reviews must be publicly tabled in the Legislative Assembly.”

Once again, we see the positive influence of the OPCAT instrument as an international point of reference for best detention monitoring practice.

In other articles more operational accounts are offered of other existing Australian detention monitoring bodies, including the Office of the Inspector of Custodial Services in New South Wales, South Australian Ombudsman Office, and the Chief Inspector of the Queensland Corrective Services. All of these bodies may feasibly play a future role as part of Australia’s NPM. 

Down Under
Port Arthur (Tasmania) by Andrea Schaffer (2010).

Some Final Thoughts

With less than three years to put in place an NPM, the Australian OPCAT implementation process appears to be moving steadily forward. More impressively still, Australian civil society has succeeded in establishing an informal OPCAT network to coordinate their respective activities, to closely shadow as well as to feed into the on-going OPCAT consultation process, to which several of the above contributors belong. While no analogue civil society network currently exists in the Canadian context (bar this creaking website), this might be another best practice to be drawn from the Antipodean colleagues.

Though the task of re-purposing a sizeable number of existing monitoring bodies as the future NPM should not be taken lightly, several such oversight bodies in Australia are clearly using the OPCAT as central point of reference against which to gauge and recalibrate their existing inspection activities. In itself, this process of reflection appears to have been an important outcome of the OPCAT implementation process, despite there being much work ahead in this respect.

Yet none of the above would have been possible without a reasonable degree of willingness on the part of the Australian authorities to open up the domestic OPCAT process to discussion – crucially with civil society. Gloomily, as previously stated, such openness and inclusiveness has been almost entirely lacking in Canada, despite international recommendations and advice to this end.

This impenetrability and opacity aside, the OPCAT discussion process Down Under remains an invaluable benchmark of how such a national discussion might be conducted in future in Canada. It goes without saying that we wish our impressive Australian colleagues the very best of luck with these crucially important torture-prevention endeavours.

The next installment of the ICPA Network newsletter is scheduled for September 2019 with the featured country jurisdiction of Argentina and the featured topic of “Strengthening our Correctional Cornerstones: Rights, Dignity, Safety and Support.” Persons interested in contributing an article should contact the Office of the Correctional Investigator.

Read the current ICPA Network newsletter.

Read an earlier article based on the current newsletter titled Critical Expert Focus on Solitary Confinement.

Read ICPA Network newsletter No. 1.

Visit the Network’s webpage and see who is a member.

Make a request to join the Network by contacting Canadian Correctional Investigator, Ivan Zinger.

Listen to Steven Caruana talk about the Australian OPCAT process on C3R radio.

Posted by mp in Australia, Implementation process, NPMs, OPCAT, Oversight bodies