The Cypriot NPM pointed out that the Ombudsperson’s and thus the NPM’s staff members cannot be called to give testimony in cases which they have researched and/or monitored in this capacity. It does not provide evidence in courts, except for already public reports.303 Interestingly, this practice very much diverges from the practice of the Finnish NPM, although the laws seem similar. There are those NPMs that give evidence and expert opinions if they are summoned, such as the Spanish, Swedish or Greek NPM. In Sweden there is a general obligation to testify for whoever is called to do so (expressed in the Code on Judicial Procedure). This means that if an NPM staff member would be called as a witness to give evidence on e.g. conditions in a place of detention that the NPM has visited, he or she would appear in court. The Greek NPM explained that it would not intervene for an individual against public officials, but that they only give general reports and opinions, for example highlighting the situation of LGBTIs in detention. The Spanish NPM would decide on a case-by-case basis, if the request comes from one of the detainees. In the interview conducted with Mari Amos, SPT member, she stated, that NPMs themselves should decide whether to give evidence or not.304 The APT supported this view stating that it would be for the NPM to decide, and highlighting that it would be possible, particularly regarding systemic concerns, but that it might also be connected to certain risks, especially with regard to disclosing information.305 In the authors views, giving evidence in Court and guaranteeing privilege are not mutually exclusive. Arguably, while refusing to give evidence may be an option, it should not be the automatic or immediate response, but on a case by case approach, keeping mind that all should be done to fulfil the NPM mandate of preventing torture while respecting confidentiality. There are a number of ways to ensure that a court can hear of potential human rights concerns while ensuring that the principle of confidentiality is not breached. For example cases or evidence can be heard in camera, or with reporting restrictions. Documents can be handed into Court for the question of privilege to be considered and decided upon by the Judge. Furthermore, redacted reports to remove sensitive information can be produced. All of these possibilities should be considered by the NPM before taking a decision on whether or not to give evidence. Participating in strategic litigation The French NPM was the only one to provide an example of being involved in strategic litigation. In May 2016, two cases were initiated at the ECtHR and both cases involved overcrowding. While the case itself is led by the French NGO “Observatoire international des prisons” aiming at a pilot judgment, the French NPM jointly with the NHRI (Commission nationale consultative des droits de l’homme) submitted an amicus curia to the Court, to provide information regarding the overcrowding of these prisons and in France in general. There is room to further explore the potential of such areas of engagement, and there are other similar examples of NPMs acting as amicus curiae in cases, as discussed in further detail in the following chapter. Of course there are practical limitations including resources and overburdening NPMs that must be taken into account, but where possible for the effective operation of the NPM mandate, avenues of engagement that serve to enhance the work of NPMs should be pursued. 303 The Cypriot NPM also shared the relevant legal provision, Art. 12 (2) Commission for Administration Law: “The Commissioner or any member of the staff of his Office may not be called to testify before a Court or in any proceedings of a legal nature in respect of any matter that has come to this knowledge in the exercise of his duties.” 304 Interview with Mari Amos, 30 August 2016. 305 Interview with APT, 3 November 2016. 83