CHAPTER 4: THE RULE OF LAW AND THE CORE PROTECTION MANDATE A guide to creating National Preventive Mechanisms by the Association for the Prevention of Torture makes the following recommendations: 11 States can choose either to designate an existing mechanism or to create an entirely new mechanism. Neither model is universally inherently better than the other. 11 Civil society must be included in the process of deciding whether to use an existing or create a new mechanism. 11 Before designating an existing institution, the government and civil society must carefully and exhaustive [sic] review its mandate, jurisdiction, independence, powers and guarantees, to ensure that it fully complies with OPCAT requirements, make any necessary legislative amendments and provide any increase in resources required.8 It should be noted that regardless of whether a NHRI is formally designated as a “national preventive mechanism”, the NHRI should nonetheless use its general mandate to monitor, review and comment on the status of detention facilities. 4.3.3 Preventing arbitrary detention and forced disappearances Arbitrary detention and forced disappearances are not only grave abuses in their own right, but also hold the key to stopping torture. NHRIs should monitor carefully the powers of law enforcement officials to detain persons on a preventative basis, and in appropriate cases, should establish mechanisms like priority complaints processing for any serious allegations of abuse or disappearances. Reporting mechanisms like hotlines for missing persons who are alleged to have been detained improperly can be helpful, provided they are accessible, responsive and that the NHRI then follows up with every call on a timely basis. Some NHRIs conduct spot inspections, without prior announcement, of facilities that may be “safe-houses” or informal detention centres which are in fact illegal detention centres. Families of detained persons are able to appeal to the NHRI in case of irregularities, and can file complaints, where the NHRI can receive complaints. In most countries, habeas corpus applications will be appropriate remedies. TABLE 3: NHRIS AND TORTURE PREVENTION 9 CAT CONVENTION Has the State made torture a criminal offence? NHRIs can advocate for this legislative provision if not. Has the NHRI lobbied the State for the ratification of CAT and its Optional Protocol? This requires capacity to provide advice to government. ACTION TAKEN Does the NHRI submit opinions and recommendations based on their findings after a prison visit? This requires capacity to follow up with findings, analyzing results and reporting. Does the NHRI provide training to the military, prison officers, law enforcement officials, judges, lawyers, social workers and NGOs? This requires capacity to develop the promotion aspect of the mandate. Does the NHRI actively cooperate with the Special Rapporteur on Torture, the Committee against Torture or its Sub-Committee on Prevention? Association for the Prevention of Torture, Establishment and Designation of National Preventive Mechanisms, Geneva, 2006, p. 88. See Appendix 4. 8 This is adapted from OHCHR, Guidance Note: National Human Rights Institutions and the Work of OHCHR at Headquarters and Field Level, 2007, op. cit. 9 57