Serving Up The OPCAT Down Under

Probably rarely has the OPCAT ever been served for breakfast, but earlier this week Melbourne community radio station 3CR 855 AM broke new ground in this connection!

During the Tuesday Breakfast Show this week 3CR presenter Anya Saravanan interviewed Australian OPCAT expert Steven Caruana on the implications for Australia of ratifying the OPCAT.

Canadian human rights actors may be especially interested in this interview, as Australia is currently in the process of putting in place an NPM. Like Canada, Australia is also likely to designate multiple bodies as the future NPM.

In the interview Steven Caruana throws a timely spotlight on the importance of the OPCAT as a human rights instrument, its relevance and added value in the Australian context, and the wide scope of the definition of deprivation of liberty under the OPCAT. You can listen to Anya’s interview with Steven at around the 21 minute mark – please click here.

Steven Caruana 3CR interview
Steven Caruana 3CR

The thoughts of Steven Caruana on the OPCAT in Australia have previously been explored on the Canada OPCAT Project website, including an in-depth
interview conducted with him by Sydney Criminal Lawyers’ writer Paul Gregoire in September 2018.

In the course of 2017 Steven Caruana undertook in-depth research into the wider issue of how the OPCAT was functioning in reality as part of his Winston Churchill Trust Fellowship. The resulting publication (which has also been featured on this website), Enhancing best practice inspection methodologies for oversight bodies with an Optional Protocol to the UN Convention against Torture focus, identifies both good practice inspection methodologies as well as a concept of what constitutes a framework for good practice for NPMs.


Visit the Melbourne community radio station 3CR website and listen to their many other shows live or on podcast.

Listen to an audio-recording of the work of the New Zealand NPM, as highlighted in these pages.

Readers may also wish to listen to an earlier Soundcloud interview featured on this website with the Norwegian NPM, the Parliamentary Ombudsman.

Posted by mp in NPMs, OPCAT

The UNCAT 65th Session: Important OPCAT Lessons for Canada

The UN Committee against Torture reached a remarkable milestone in its lifetime earlier this month, having successfully completed its 65th session, some 34 years after the adoption of the UN Convention. Nonetheless, it was business as usual for this body of international experts, who had another tranche of states to review in Geneva from 12 November to 7 December.

Canada numbered one of the six countries whose periodic reports were examined by the UN Committee, the others being Guatemala, Maldives, Netherlands, Peru and Viet Nam. Over the past week or two the outcome of this review of Canada has been explored in some detail on this website.

In particular, UN Committee key recommendations have been discussed in relation to the need for independent oversight of immigration detention as well as psychiatric care settings, and the urgency for Canada to push ahead with the ratification of the OPCAT. In this latter connection it will be recalled that the UN Committee urged Canada to:

“Complete the process towards accession to the Optional Protocol to the Convention, while introducing mechanisms to ensure the participation of civil society, Indigenous groups and other stakeholders in the entire process”

Unfortunately, to date, the process of consultation has mainly sought the opinions of the different provincial and territorial governments and not those of civil society and the country’s many Indigenous groups.

UNCAT 65th session Canada Probed
Palais Wilson – Office of the United Nations High Commissioner for Human Rights in Geneva by UN Photo/Jean-Marc Ferre

Surprisingly, among the six countries examined by the UN Committee during the 65th session, only Canada and Viet Nam have yet to ratify the instrument – not a human rights comparison usually made between these two countries. Similar to Canada, the UN Committee called on Viet Nam to consider acceding to the OPCAT as well as, in the interim, to establish a national mechanism that independently, effectively and regularly monitors and inspects all places of detention in the country without prior notice (see §34-35).

Even though Canada has yet to ratify the instrument, certain of the OPCAT-related outputs of the other country reviews have possible direct relevance in the Canadian context, particularly at a moment when the country is considering how it might implement the instrument.

UNCAT 65th session concerns vis-à-vis the OPCAT

During the 65th session the UN Committee advanced recommendations in relation to all four countries under review which are States Parties to the OPCAT. As will be revealed, certain common concerns arose repeatedly.

The UN Committee’s concerns about the Guatemalan NPM were far-reaching and related primarily to the election process of the different members of the National Office for the Prevention of Torture and its general ineffective operation and performance in practice. However, other serious concerns existed, including the NPM’s alleged use as a tool to pressurize anti-corruption judges and the limited involvement of civil society in the NPM’s activities (§14). A whole raft of recommendations were directed at Guatemala in order to address such extensive concerns (§15).

The UN Committee’s concerns about the Netherlands’ NPM were also relatively sweeping, several of which had previously been voiced by other key UN human rights actors, most notably the UN Subcommittee on Prevention of Torture (SPT) during a 2015 visit to the Netherlands.

As in a small number of other states, the Dutch NPM is a multi-body mechanism, comprising four monitoring bodies. These include: its coordinating body, the Inspectorate of Security and Justice; Health Care Inspectorate; Inspectorate for Youth Care; and the Administration of Criminal Justice and Protection of Juveniles. In 2015 the SPT regretted that the four NPM bodies had not been allocated additional financial and human resources to take on the NPM mandate and adequately fulfil its related functions (§46). It also found the almost complete absence of an independent legal basis for the NPM’s activities had marred the operation of the Dutch NPM (§14-15).

During its 65th session the UN Committee echoed these sentiments, stating that it was concerned “… about consistent reports on the NPM’s lack of both resources and independence.” (§22) The Committee urged the country to address these and other shortcomings (§23).

UNCAT 65th session
Nations Unies by MPDO1605

An absence of resources and autonomy also arose in relation to Peru, where the Ombudsman was belatedly designated as the country’s NPM. It noted:

“…the Committee regrets that the national preventive mechanism does not enjoy the functional autonomy required for the normal exercise of its functions, nor does it still have the human, material and technical resources necessary for its proper functioning (Article 2).” (§14)

The country was urged to address such shortcomings (§15).

Regrettably, a shortfall in resources commonly afflicts national torture prevention bodies. In relation to the Maldives it was significant that the UN Committee also commented negatively on the financial base of the country’s NPM, the Human Rights Commission of the Maldives. In so doing, it stated that the Maldives should provide it with additional financial resources “… in order to enable it to carry out more visits and better fulfil its functions as National Preventive Mechanism, including the function of conducting unannounced visits to all places of deprivation of liberty”. (§38a)

It is an incontrovertible reality that a significant number of NPMs struggle to operate effectively with the financial, human and material resources made available to them. Even NPMs located in the stronger economies of Western and Northern Europe have been found to be poorly resourced.

For Canada the challenge of securing adequate resources for its future NPM will be significant. Irrespective of whether existing human rights institutions are re-purposed as NPMs or whether new entities are established, the task of effectively implementing the OPCAT at the national level will require a significant government commitment of resources. It therefore remains important for Canada to draw on the above lessons and to ensure that its future NPM has the resources to effectively tackle the task at hand.


Read the Concluding observations on Canada’s seventh periodic report.

Read OMCT’s E-Bulletin from November-December 2018 on the 65th session of the Committee against Torture in English.

Posted by mp in OPCAT, UNCAT

COPCAT Shorts: The Greek Ombudsman on the OPCAT

The declared objective of the Optional Protocol was to establish a system of monitoring, by international and independent national bodies, of the conditions in deprivation of liberty in order to avoid acts of torture or cruel, inhuman or degrading treatment or punishment. Its necessity, obvious: without the Optional Protocol, the UN Convention against torture would lack the necessary and effective mechanism for the control of detention conditions. It would remain a declaration of intent, without an assessment of practices and applied policies. Its importance, highly significant: the fact that a significant number of countries that have subscribed to the UN Convention against torture, has yet to ratify the Optional Protocol, thus abstaining from the substantive application of the Convention itself serves as indicative proof: from the US and Canada to the Russian Federation, the countries of the Middle East, northern and eastern Africa and Asia.

OPCAT: National Preventive Mechanism Against Torture And Ill-treatment, Annual Special Report 2016 – The Greek Ombudsman (page 4).

Read the recently published Greek Ombudsman Special Report 2016 in English.

Explore the Greek Ombudsman website.

Read the UN Committee against Torture’s recent Concluding observations on Canada.

Greek Ombudsman
Posted by mp in NPMs, OPCAT, UNCAT

What the UNCAT Said: Oversight of Psychiatric Detention

The challenge of ensuring adequate oversight of psychiatric detention in Canada has once again come onto the United Nation’s radar. At a time when Canada is considering the ratification of the OPCAT, the UN’s observations are extremely relevant in this respect. 

As highlighted in these pages, late last week the UN Committee against Torture published its findings of its 21-22 November 2018 examination of Canada in Geneva, Switzerland. In its Concluding observations, published on 7 December, the 10-person expert Committee expressed concern about deficiencies in relation to the oversight of psychiatric detention and made a recommendation in this same connection.

Psychiatric detention
United Nations High Commissioner for Human Rights in Geneva
by UN Photo/Jean-Marc Ferre

During Canada’s examination by the UN Committee’s Co-rapporteur on Canada, Bakhtiyar Tuzmukhamedov, on 21 November the question was raised about the absence of independent oversight of psychiatric institutions. He noted that under the OPCAT certain States Parties to the OPCAT were adopting a broad definition of deprivation of liberty which took in psychiatric, social care and educational detention settings. He therefore queried Canada’s approach to this matter.      

In its Concluding observations the UN Committee stated (§20):

“While taking note of the existing prison monitoring bodies, including the Office of the Correctional Investigator and the Canadian Human Rights Commission, the Committee observes with concern the absence of independent oversight bodies to inspect other places of deprivation of liberty, in particular psychiatric institutions.”

The UN Committee therefore recommended that Canada (§21a):

“(a) Ensure an effective and independent monitoring and reporting system for mental health institutions”

As a country which is currently considering the potential implementation of the OPCAT, the above concern and recommendation are especially relevant, for reasons to be outlined below.


The scope of psychiatric detention in Canada

In Canada the provision of health care is largely a provincial concern and social care homes and psychiatric institutions fall within the purview of the provincial and territorial authorities.

In 2018 the Canada OPCAT Project embarked upon the process of mapping different places of detention in the country. While still very much a work-in-progress, to date, the initiative has mapped out some 234 acute in-patient mental health units and other psychiatric facilities in Canada. As statistics have yet to be obtained for the province of Québec, the figure of 234 facilities will be a distinct underestimation (readers are kindly invited to submit this missing information).

Psychiatric detention
Prisoner by Premnath Thirumalaisamy (2017)

This mapping-exercise did not attempt to tally the number of social care homes in Canada due to their potentially very large number and the lack of access to centralized provincial and territorial data.

Nonetheless, if Canada ever ratifies the OPCAT, upon being requested to provide detailed lists of all custodial settings (on the basis of OPCAT Article 20a), the future Canadian State Party to the OPCAT will be required to furnish both the NPM and UN Subcommittee on Prevention with accurate information in this regard.

The exercise of mapping out the numbers, location and size population-wise of social care homes will be an especially challenging task, more so as the numbers of facilities involved are potentially very large.

In Germany for example, a country with more than double Canada’s population albeit much smaller geographically in size, the NPM has calculated that some 550 psychiatric wards in special clinics or general hospitals and around 10, 900 social care homes and homes for the elderly fall within its detention monitoring mandate.

In the United Kingdom as part of its so-called now annual Detention Population Data Mapping Project for the fiscal year 2016–17, the NPM noted that 68, 843 persons were involuntarily detained under mental health legislation, while a further 100, 065 detained persons lacked the capacity to consent to deprivation of liberty.

In a word, the examples of the United Kingdom and Germany point to the scope of the task ahead in Canada of ensuring that all detention settings are potentially covered by the future Canadian NPM.


Existing oversight of psychiatric detention

At present psychiatric care settings are a detention domain which are mainly served by a combination of existing provincial and territorial complaints bodies and not the type of preventive mechanisms as envisaged under the OPCAT. Thus, a series of extensive modifications to the statutes, mandates and operational focus, structures, budgets and composition of such bodies would be required to make them OPCAT compliant.

There also appears to exist significant differences in oversight of psychiatric settings at the provincial and territorial level. While in a small number of provinces there exist specialized ombudspersons offices, in most, specialized bodies do not appear to exist. In such instances, wide mandate ombudspersons offices and internal ‘patient relations’-type processes exist to channel patients’ concerns and complaints.

Ontario is unique as a province, as patients in psychiatric settings and long-term care homes have the real possibility of recourse to two specialized ombudsperson-type bodies, namely the Ontario Patient Ombudsman and Psychiatric Patient Advocacy Office. Similarly, in British Columbia various Patient Care Quality Review Boards exist for the purpose of processing complaints.

In other provinces where specialized ombudspersons offices do not exist, members of the public should take their concerns to more general ombudsperson-type institutions. Thus, in Manitoba complainants can refer to the Manitoba Ombudsman, which in the past acted on a series of complaints of abuse in care settings to undertake a related inquiry. Likewise, in Québec, if a complaint about health and social service provision is not responded to within 45 days, or with satisfaction, by the service provider’s complaints commissioner, a complaint can be lodged with the Protecteur du Citoyen. In Yukon the Yukon Ombudsman is mandated to receive complaints into hospitals.

The limitations of these complaints-handling bodies from an OPCAT perspective were noted previously. Thus, the prevailing concerns about the need to change legal statutes, mandates, operational focus, budgets and in-house expertise would ring true for the domains of psychiatric detention and social care settings. In short, a proactively focused Canadian NPM would function very differently to how these entities currently operate in practice.

Whether the UN Committee’s Co-rapporteur on Canada, Bakhtiyar Tuzmukhamedov, had such concerns in mind when he broached the issue of oversight of psychiatric detention is not known. Nonetheless, the UN Committee’s recommendation in this respect has arrived at a timely moment, as Canada considers the ratification and implementation of the OPCAT.       

See the UN Committee against Torture’s Concluding observations on Canada.


Posted by mp in Mapping-exercise, NPMs, OPCAT, Oversight bodies, Places of detention

What the UNCAT Said: Oversight of Immigration Detention

The divisive topic of Canada’s use of immigration detention has once again been the focus of international discussion. Late last week the UN Committee against Torture published its findings of its 21-22 November 2018 examination of Canada in Geneva, Switzerland.

In its so-called Concluding observations, published on 7 December, the UN Committee issued a raft of recommendations, covering an array of different human rights issues with a torture/ill-treatment component. Several key concerns and associated recommendations related to the provision of independent oversight of immigration detention as well as psychiatric detention.

This short update will focus on the UN Committee’s concerns and recommendations regarding immigration detention, while a future article will examine the question of why independent oversight of psychiatric detention settings is lacking in Canada.

Immigration detention practices

In contrast to certain other countries, Canada’s dedicated immigration holding regime is relatively small, comprising three facilities. However, the country’s provincial prison estates are also used for the dispersal and detention of immigration detainees.

Immigration detention
Welcome to Canada! by Cria-cow.

According to the Canada Border Services Agency, in the fiscal year 2017-2018 some 8,355 persons were detained for a total of nearly 120,000 detention days in Canada. Of this number, 6,609 persons were held in one of the country’s three Immigration Holding Centres, while the remainder were detained in provincial and other facilities.

It was therefore especially striking that, during the recent review of Canada, the UN Committee against Torture called on the Canadian authorities to end the practice of detaining irregular migrants and asylum seekers in provincial correctional centres (see §35h). Whether Canada is willing to act on this recommendation is at present unknown.

Oversight of immigration detention

The vital issue of oversight of immigration detention comprised an important aspect of the discussions which took place in Switzerland last month.

On 21 November the UN Committee’s Co-rapporteur on Canada, Bakhtiyar Tuzmukhamedov, queried the country’s ‘reluctance’ to provide for permanent arms-length oversight of immigration detention, despite the existence of an agreement with the Canadian Red Cross to monitor the country’s three Immigration Holding Centres as well as some provincial prisons. In doing so, he requested information about the modalities of the Canadian Red Cross’ monitoring of immigration detention and any related reports.

In a response presented to the UN Committee against Torture on 22 November representative of Public Safety Canada Jill Wherrett offered an overview of the monitoring arrangements between the Canada Border Service Agency (CBSA) and the Canadian Red Cross. She also announced that the Canadian Red Cross’ Annual Report of its monitoring activities of CBSA detention facilities would be made public, along with a related agency action plan. The Canada OPCAT Project awaits the publication of this report with great interest.   

Immigration detention
Palais des Nations, Geneva by UN Photo/Jean-Marc Ferre.

Despite such reassurances, the UN Committee against Torture has called for other monitoring arrangements to be instituted in relation to immigration detention in Canada. In its Concluding observations the UN Committee stated (§34):

“The Committee takes note of the detention monitoring services provided by the Canadian Red Cross, through a two-year contract signed between the Canada Borders Services Agency (CBSA) and this organization on 27 July 2017, although it remains concerned at the lack of an independent mechanism for oversight of the CBSA.”

The UN Committee therefore recommended that Canada (§35i):

“Establish an effective and independent oversight mechanism of the CBSA to which individuals held in immigration detention can bring complaints.”

For the purposes of balance, it should be stressed that the Canadian Red Cross clearly states on its website that: “Red Cross monitoring activities would not preclude or replace those of a public ombudsman with legal jurisdiction over immigration detention facilities in Canada.” Moreover, in the current absence of such a body, the Canadian Red Cross unquestionably executes a vitally important human rights oversight function. Nonetheless, the decision to build on such oversight through the establishment of a permanent arms-length body ultimately lies with the federal authorities.    

Other immigration detention-related concerns

Similar to its 2012 examination of Canada, the UN Committee once again articulated an array of concerns about the country’s use of immigration detention, making various recommendations in this connection. In general terms the UN Committee observed (§34):  

“The Committee notes with concern that the State party continues to use mandatory detention for arriving non-citizens designated part of an “irregular arrival”,and that the time limit for such detention is not defined by law. Also of concern is the absence of an effective mechanism to review the lawfulness of the detention; the inadequate medical and mental health care services in federal immigration detention facilities; and, the reliance on provincial correctional centres. Furthermore, and while noting that the existing directives provide that minors are not to be detained, except in exceptional circumstances, the information before the Committee indicates that during the period under review children continued to be placed in immigration detention, in many cases as “guests” with their parents or adult siblings. According to reports before the Committee, these children who are not officially detained have no independent right of review of their detention.”

The UN Committee’s recommendations were therefore several, some of them voiced on previous occasions, and included that:

  • mandatory detention of ‘irregular arrivals’ be repealed in law;
  • detention be used only as a last resort and for a short a period as possible;
  • a reasonable time limit on the duration of administrative immigration detention should be established;
  • judicial review or other meaningful and effective avenues to challenge the legality of administrative immigration detention should be guaranteed, including of all children detained or ‘housed’ in CBSA detention facilities;
  • children and families with children should not be detained solely because of their immigration status;   
  • efforts should be made to ensure adequate living conditions in all immigration centres;
  • and detainees should be provided with adequate medical and mental health care, including routine assessments.

Interested readers should consult paragraphs 34 and 35 of the Concluding observations for further details of these concerns and the associated recommendations.

It was not coincidental that several of these same concerns and recommendations also arose during Canada’s examination by the UN Committee on the Elimination of Racial Discrimination in 2017 and the UN Human Rights Committee in 2015. To what extent Canada will act on these key UN Committee against Torture recommendations from 2018 before its next scheduled UNCAT review sometime in 2022/23 remains to be seen.

Later this week the Canada OPCAT Project will put into focus the oversight of psychiatric detention in Canada. Thus, please visit us again shortly.

Related resources:

See the UN Committee against Torture’s Concluding observations on Canada.

Read the Global Detention Project report, Harm Reduction in Immigration Detention (2018), which outlines key measures which states can implement to lessen the harmful impact of immigration detention on detainees.

Explore the Association for the Prevention of Torture’s Monitoring Immigration Detention – Practical manual (2014), available in French and English.

Read the University of Oxford’s Faculty of Law Border Criminologies publication, HMIP Detention Monitoring Methodology: A Briefing Paper (2018), which offers illuminating insights into how the task of independent monitoring of immigration detention is being approached in one jurisdiction. 

Posted by mp

COPCAT Shorts: Open Up OPCAT Process – UN Committee against Torture

Open UpThe Committee appreciates the information provided by the delegation regarding the consultations held with territorial and provincial Governments and within the federal Government in the framework of the review process of the potential accession of Canada to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It also welcomes the assurances of the delegation that civil society and Indigenous groups will be consulted as soon the federal, provincial and territorial government consultations are finished, but remains concerned that no fixed time frame was specified for the completion of the overall process (arts. 2, 11 and 16).

The State Party should:

Complete the process towards accession to the Optional Protocol to the Convention, while introducing mechanisms to ensure the participation of civil society, Indigenous groups and other stakeholders in the entire process.

UN Committee against Torture, Concluding observations on Canada’s 7th periodic report, issued 7 December 2018 (§20-21).

 

See the full Concluding observations on Canada in English.

Read an overview of the UNCAT session on Canada.

Learn more about the UNCAT’s focus on the OPCAT during the session.

Examine again Canada’s publicly stated commitment to future transparency on the OPCAT process.

In the coming days the Canada OPCAT Project will present a more in-depth analysis of Canada’s overall examination by the UN Committee against Torture and possible next steps in relation to the OPCAT.

Posted by mp

New Publication: Protecting LGBTI Persons in Detention

The Geneva-based Association for the Prevention of Torture (APT) has added to its many other detention monitoring resources through the publication of its new tool, Towards the Effective Protection of LGBTI Persons Deprived of Liberty: A Monitoring Guide. The latter is available for download in English.

LGBTI Monitoring GuideWeighing in at a welcomely exhaustive 130-odd pages this superb publication offers first-class guidance on monitoring various detention settings where LGBTI persons might be deprived of their liberty.

Written by Jean-Sébastien Blanc, the APT’s Director of Thematic Programmes, and based on extensive consultation with key human rights actors, the new guide complements the organization’s numerous other tools with a focus on detention, including prisons, police facilities, immigration detention, and psychiatric and social care settings. Many of the APT’s publications are featured in these pages under Other Resources.

Significantly, the UN Independent Expert on Protection against violence and discrimination based on sexual orientation and gender identity, Victor Madrigal-Borloz offers the following thoughts in the publication’s Foreword, highlighting the gap it fills:

Upon entering a place of deprivation of liberty, I have had meetings in which authorities were visibly uncomfortable at the sole use of the word lesbian and others in which I was informed that gay men are a construct of other parts of the world and not existing in that context. While the legal argument that condoms are criminal paraphernalia is only made in the 71 countries that still criminalise same sex relations, in the rest of the world the stigma associated to the mere existence of LGTBI persons remains deeply entrenched in the collective awareness.

Up to this day, I have never had an experience where policies in places of detention catered for bisexual persons or revealed an understanding of intersexuality. While great progress has been made in relation to the needs of trans persons, they remain the most mistreated of all persons deprived of liberty …

The reader of this manual, possibly about to engage in a visit that hopefully will impact persons’ lives and contribute to social change, may experience apprehension deriving from an awareness of just how little one single person can know about the enormous range of problems and needs connected to sexual orientation and gender identity in places of deprivation of liberty, a concern that I know only too well. This guide – prepared by the Association for the Prevention of Torture with great attention to the current state of international human rights law, best practices in the field of torture prevention, and the wealth of experience of the extraordinary group of experts that provided its substance – will provide an understanding of the factors of risk and the acts, patterns and extreme manifestations of torture and ill treatment against LGTI persons, and is an invaluable blueprint for any conceptual understanding of these.

In this connection there can be no doubt that the APT guide ably accomplishes what it sets out to achieve. The publication is divided into five main chapters, the first of which highlights the specific exposure of LGBTI detainees to torture and other ill-treatment. It is then followed by an in-depth focus on the key considerations relating to monitoring methodology, closely examining all stages of the detention monitoring process from planning a programme of visits through to reporting on their findings.

The latter three chapters offer useful practical insights into three frequently encountered detention contexts. These include a focus on the monitoring of the situation of LGBTI persons in: (a) prisons; (b) police custody as well as the wider context of policing; and (c) immigration detention. In doing so, these chapters offer the reader detailed guidance on key aspects of monitoring such detention regimes.

In bringing to the fore such a key publication the APT has once again succeeded in equipping detention monitors and human rights actors alike at the national level with an invaluable tool aimed at enhancing the protection of a particularly vulnerable group of persons when deprived of their liberty.

***

Readers are kindly invited to download the publication and explore its contents.

Discover more background information about the guide.

Read author Jean-Sébastien Blanc’s guest blog about his new contribution to torture prevention for Penal Reform International.

Posted by mp in Independent detention monitors, Monitoring tools, Publication, Tools

NPMs In Practice: The View From New Zealand

From out of the archives comes a very illuminating discussion on the work of New Zealand’s NPM, as hosted in a previous edition of the highly respected Speak Up/Kōrerotia radio show. In this podcast the show’s host, Sally Carlton, interviewed Jacki Jones of the Office of the Ombudsman and Jolyon White of the Howard League in an aptly titled episode, ‘Monitoring Places of Detention’.

Comprising some five different bodies, the New Zealand NPM has now been exercising its OPCAT mandate for over a decade, since the country ratified the OPCAT in 2007. In view of the distinct possibility that Canada too may adopt a multi-body mechanism as its future NPM, the podcast from 2016 remains as relevant today as the day it was broadcast.

Among the different issues discussed during the podcast, most of which have direct relevance to the Canadian context, were included the following:

  • What constitutes deprivation of liberty?
  • What is the OPCAT and what does it mean for New Zealand?
  • What does the NPM focus on during visits and to what extent does the NPM conduct follow-up to the findings of the UN Subcommittee on the Prevention of Torture (SPT)?
  • What are the common concerns found in prisons?
  • What rights do persons in detention have?
  • Are mental health issues a prevailing factor in such settings?

The answers to these discussion questions are also interspersed with music. Thus, for readers with a penchant for fine New Zealand music such as Crowded House, the show additionally merits a closer listen.

 

Background information

The New Zealand NPM comprises five different specialized bodies, including: New Zealand Human Rights Commission; Office of the Ombudsman; Independent Police Conduct Authority; Office of the Children’s Commissioner; and the Inspector of Service Penal Establishments. More detailed information about the detention responsibilities of the different NPM bodies can be found on the Human Rights Commission’s website.

New Zealand NPMIn the context of this NPM arrangement the New Zealand Human Rights Commission has an overall organizational role with responsibilities for NPM coordination, reports, systemic issues, and liaison with the United Nations. It should be stressed, however, that the task of establishing the collective visibility of the NPM and coordinating its activities has not been without its challenges, not least in the absence of adequate resources.

During a visit to New Zealand in 2013 the UN Subcommittee on Prevention of Torture lamented the fact that no additional resources had been allocated to the five monitoring bodies when assuming the NPM mantle. The SPT stated in no uncertain terms: “Should the current lack of human and financial resources available to the mechanism not be remedied without delay, the State party will inevitably find itself in the breach of its obligations under the Optional Protocol.”[1]

In its most recent Annual Report from 2016-2017 the NPM has continued to bemoan its overall lack of resources, stating (on page 4):

The NPM’s potential remains underutilised as inadequate resourcing continues to constrain some NPMs. As a result, the mechanism is yet to make consolidated progress on a range of key issues of concern and has not been able to implement a more comprehensive monitoring approach that is in line with international best practice. Better resourcing would enable increased frequency of visits and better inspection coverage by all NPMs, as required under OPCAT. More funding would also mean the services of experts could be contracted to assist with visits when and where required. All NPMs should be fully resourced to carry out their OPCAT responsibilities.

Quite clearly, if the Canadian Government opts for a multi-body approach to implementing the OPCAT (as has been predicted in these pages), it should ensure at all costs that the NPM is adequately resourced. Regrettably, the New Zealand NPM is far from alone in being a significantly under-resourced national torture prevention body.

***

Read more about the New Zealand NPM here in English.

The New Zealand NPM’s latest Annual Report is available here.

The report of the 2013 visit to New Zealand by the UN Subcommittee is available in English and French.

Readers may also wish to listen to an earlier Soundcloud interview featured on this website with the Norwegian NPM, the Parliamentary Ombudsman.

[1] Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,  Visit to New Zealand undertaken from 29 April to 8 May 2013: observations and recommendations addressed to the State party – Report of the Subcommittee (UN Doc. CAT/OP/NZL/1, 10 February 2017) §12.

Posted by mp

COPCAT en bref: Focus du Protecteur du citoyen sur les conditions de détention

Les conditions de détention dans les prisons provinciales sont examinées dans le Rapport annuel 2017-2018 du Protecteur du citoyen du Québec. Au cours de cette période, l’institution a traité près de 5 000 plaintes concernant des prisons.

Protecteur du citoyen

Le Protecteur du citoyen, Marie Rinfret, a présenté son rapport à l’Assemblée nationale du Québec le 29 novembre 2018, soulignant diverses préoccupations à cet égard:

  • En raison de la surpopulation carcérale, des établissements de détention en viennent à placer jusqu’à trois personnes dans une cellule prévue pour une seule. La situation perdure, notamment en raison d’un manque de planification au regard des opérations entourant l’ouverture de nouveaux établissements.
  • Alors que l’isolement cellulaire, soit le confinement en cellule 22 heures ou plus par jour, doit être utilisé de façon exceptionnelle et selon des balises bien définies, il arrive qu’il soit pratiqué pour des périodes pouvant atteindre plusieurs semaines, voire des mois.
  • Dans un rapport paru en mars 2018, le Protecteur du citoyen fait la lumière sur les conséquences de l’augmentation des peines discontinues dans les établissements de détention.
  • Les mesures à mettre en place pour contrer le survol des établissements par les drones ne doivent pas porter atteinte aux droits résiduels des personnes incarcérées.
  • Les personnes incarcérées ne peuvent exercer leur droit de vote lors des élections municipales et scolaires. Le Protecteur du citoyen fait des recommandations pour changer cette situation.
  • Des recommandations du Protecteur du citoyen concernant les conditions de détention, l’administration de la justice et la prévention de la criminalité au Nunavik tardent à être implantées.

Le Rapport annuel 2017-2018 du Protecteur du citoyen peut être téléchargé en français.

Posted by mp in Oversight bodies, Prisons

COPCAT Shorts: Québec Ombudsperson Prisons Focus

Conditions of detention in Québec’s provincial prisons have once again come under close scrutiny in the Annual Report 2017-2018 of the Québec Ombudsperson. During this period nearly 5000 complaints concerning prisons were processed by the institution.

Quebec Ombudsperson

Ombudsperson Marie Rinfret presented her report to the National Assembly on 29 November 2018, highlighting various concerns in this respect. These included the following (taken from the report):

  • Due to prison overcrowding, some correctional facilities end up putting as many as three detainees in cells meant to hold one inmate. The situation persists, notably because of a lack of planning regarding the operations surrounding the opening of new facilities.
  • Even though solitary confinement (isolation in a cell for 22 hours or more a day) must be an exception and carried out according to clear-cut guidelines, it may last for periods of up to several weeks if not months.
  • In a report released in March 2018, the Québec Ombudsperson shed light on the consequences of the increase in intermittent sentences in correctional facilities.
  • The measures introduced to curb drone activity over correctional facilities must not infringe on detainees’ residual rights.
  • Detainees cannot exercise their right to vote in municipal and school elections. The Québec Ombudsperson made recommendations aimed at changing this situation.
  • The Québec Ombudsperson’s recommendations concerning detention conditions, the administration of justice and crime prevention in Nunavik are slow to be implemented.

The Québec Ombudsperson’s Annual Report 2017-2018 can be downloaded in full in English.

Posted by mp in Oversight bodies, Prisons