Courts have a legal duty to hear complaints of torture and ill-treatment whether in the context of criminal proceedings or civil complaints and to be aware of circumstances and situations where evidence might have been obtained on foot of torture or ill treatment.245 There is an obligation to promptly, impartially and thoroughly investigate fully such matters. Judges must ensure that all the evidence garnered during the course of an investigation was done so in accordance with law, and that the evidence gathered was obtained without coercion or ill-treatment, even in the absence of an express complaint or allegation. Another essential mechanism to prevent ill-treatment relates to judicial oversight and the right to challenge the lawfulness of detention.246 The “primary role of judges in preventing acts of torture, therefore is to ensure that the law is upheld at all times.”247 In practice, the question of how proactive judges are, and can be, in terms of raising conditions of detention and fundamental rights in the absence of the individual or his or her legal representation contesting the surrender on such grounds will also depend on the jurisdiction. There might be differences between common law jurisdictions, where in practice it is for the legal representatives to raise issues of prison conditions on behalf of the individual, or civil law jurisdictions, where judges play a more investigative role. 1.2. the role of npms in the prevention of ill-treatment In 2002, based on the conviction that the eradication of torture and ill-treatment would require greater focus upon the conditions in which detainees are kept, the Optional Protocol to the UN Convention against Torture (OPCAT) was adopted. Its aim was to open up places of detention to independent scrutiny by establishing “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty” (Art. 1).248 Under the OPCAT, States are obliged to allow visits by the UN Subcommittee on the Prevention of Torture (SPT) and to “set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment”.249 NPMs have generated in just a few years an impressive and unprecedented volume of first-hand independent information on detention conditions as well as on the treatment of persons deprived of their liberty. Over the last years, NPMs have increasingly been seen as one of the central national actors in the prevention of torture and ill-treatment, providing reliable information on detention facilities, as well as coordinating actions with relevant State and non-State actors in the fight against torture and ill-treatment and the protection of persons in detention. The key role of NPMs in monitoring the situation of torture and ill-treatment and potentially improving the rights of detainees in the EU is increasingly recognised, including by EU institutions. By funding this and previous projects, the European Commission recognises the role NPMs can have to improve the situation of persons deprived of liberty within EU Member States.250 Most recently in the Aranyosi and Caldӑrӑru judgment, the CJEU acknowledged the pivotal role of national monitoring bodies in the implementation of EU law, in the context of the execution of EAWs, and called 245 See Art. 12, 13. Convention against Torture. Istanbul Protocol. 246 Carver R and Handley L, Does Torture Prevention Work? 2016 page 15. 247 See paragraph 3.6. Foley, Conor, Combating Torture: A Manual for judges and prosecutors, available at https://www.essex. ac.uk/combatingtorturehandbook/manual/3_content.htm#2 at para. 248 Articles in this section refer to OPCAT unless otherwise indicated. 249 See Art. 3, 17 OPCAT. 250 See for example the following Study: Moritz Birk, Gerrit Zach, Debra Long, Rachel Murray, Walter Suntinger, ´Enhancing Impact of National Preventive Mechanisms - Strengthening the follow-up on NPM Recommendations in the EU: Strategic development, current practices and the way forward´, JUST/2013/JPEN/AG/4538 (May 2015) available at www.bim.lbg. ac.at/sites/files/bim/attachments/enhancing_impact_of_national_preventive_mechanisms_0.pdf p. 68 [hereinafter: Birk et al. (2015)]. 65