NPMs giving evidence in court – a risk to independence, or effective fulfilment of the mandate? Article 21(2) OPCAT states that, “Confidential information collected by the national preventive mechanism shall be privileged. No personal data shall be published without the express consent of the person concerned.” Furthermore, the SPT Guidelines on national preventive mechanisms of 2010 notes, that “the NPM should ensure that any confidential information acquired in the course of its work is fully protected.”298 There cannot be any doubt but that confidentiality is paramount, and a crucial component of the effective workings of the NPM, and any attempt to penetrate the cloak of privilege would endanger those that the NPMs seek to protect and undermine their position. However, not all information obtained during the course of visits can be considered confidential. The SPT’s Compilation of SPT Advice in response to NPM requests also noted that “the obligation of confidentiality should not be construed as preventing NPMs from disseminating information provided that such information does not include personal date, unless there is express consent.”299 Many discussions at the NPM workshop held in this project centred around the question of providing an oral testimony in court. Several NPMs voiced their concerns in this regard, citing their mandate, independence and confidentiality as possible grounds for refusal. Not all NPMs shared these concerns and a number of NPMs300 have already provided testimony or expert opinion in a court case in their own country. The Finnish NPM clarifies that it is not called to testify before court, but that in principle giving evidence is not a problem, as this approach is not in any way infringing their independence.301 The NPM shared one case of a suspected offence by a police officer, in which a colleague from the NPM acted as a witness. The representative of the Spanish NPM recently gave evidence at the pre-trial stage in the case of an inmate that alleged ill-treatment and had previously been visited by the NPM. The Czech NPM acted as amicus curiae in a case before the Constitutional Court. Some NPMs however were sceptical about whether they could and should provide evidence in court. The European NPM Newsletter referred to an attempt to subpoena the Norwegian NPM as part of a civil case. In refusing to attend court as a witness, the NPM referred to a similar position taken by a French NPM, and expressed concerns that, “If a party who has been present during a visit by a national preventive mechanism can demand that the mechanism give evidence regarding the findings made during the visit, that would place great pressure on the integrity of the mechanism in question and its ability to fulfil its mandate and remain independent.”302 298 Paragraph 37 of the SPT Guidelines CAT/OP/12/5 299 Part II Paragraph 5 Advance unedited version of Compilation of SPT Advice in response to NPM requests. 300 Croatia, Czech Republic, Finland, Poland and Spain. 301 Interview with Finnish NPM, 7 October 2016. 302 See page 9 of The European NPM Newsletter Issue no. 72-73 January to February 2016. 82