II. THE ROLE OF NPMS DURING THE COVID-19 PANDEMIC A. NPM MANDATE pandemic. However, the prohibition against torture and the obligation to prevent such acts is absolute and The OPCAT mandates NPMs to visit all places of dep- non-derogable, meaning that “the prohibition of torture, rivation of liberty regularly, in order to prevent torture cruel inhuman or degrading treatment or punishment and other ill-treatment.6 As per the OPCAT definition, cannot be derogated from, even during exceptional cir- deprivation of liberty means “any form of detention or cumstances and emergencies which threaten the life imprisonment or the placement of a person in a public or of the nation.”9 private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative The OPCAT does not permit any restrictions to be im- or other authority”.7 In its articles 19 and 20, the OPCAT posed on NPMs’ visiting mandates.10 The World Health outlines the mandate and powers of NPMs, which in- Organization (WHO) has stressed the importance of in- clude access to all information concerning deprivation dependent monitoring and oversight in prisons and oth- of liberty, unrestricted access to all places of deprivation er places of detention in their interim guidance to states of liberty for unannounced visits and access to any indi- on COVID-19 and detention.11 Decisions to undertake vidual deprived of liberty for private interviews.8 or suspend visits to places of deprivation of liberty fall within the prerogatives of NPMs themselves, and not of This core mandate gains even more relevance in the con- national, or subnational, authorities. As demonstrated text of a global health crisis. With widespread challenges by the examples below, safeguarding the integrity of and a greater need to protect the health, safety and their mandate is crucial for NPMs that have decided human dignity of everyone deprived of liberty around the to suspend their in-person visits, to ensure that they world, and the imposition of unprecedented restrictions retain full discretion over their resumption, as well as to on the freedom of movement and personal liberties of prevent setting precedents that may prove harmful for millions of people (sometimes amounting to deprivation their independence. of liberty if a person is not permitted to leave that public or private custodial setting), independent monitoring is more important than ever. Many participating States have enacted states of emergency, curtailing a range of human rights and fundamental freedoms during the 6 7 8 9 OPCAT, 2006, Art. 1. OPCAT, Art. 4.2. OPCAT, Art. 19, 20. SPT, Advice to States and NPMs quoting: UNCAT, Article 2(2) and ICCPR, Articles 4 and 7; see also OHCHR ‘Guidance on Emergency Measures and COVID-19’, 27 April 2020 and OSCE commitments e.g. Copenhagen, 16.3 10 The OPCAT clause contemplating the possibility of temporary restrictions to monitoring visits, under very exceptional circumstances, applies exclusively to the mandate of the UN Subcommittee on Prevention, and not to NPMs. OPCAT, Art. 14(2): “Objection to a visit to a particular place of detention may be made only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit. The existence of a declared state of emergency as such shall not be invoked by a State Party as a reason to object to a visit.” This clause appears under Part III, “Mandate of the Subcommittee on Prevention,” of the Convention. 11 “The COVID-19 outbreak must not be used as a justification for objecting to external inspection of prisons and other places of detention by independent international or national bodies whose mandate is to prevent torture and other cruel, inhuman or degrading treatment or punishment […]. Even in the circumstances of the COVID-19 outbreak, bodies of inspection in the above sense should have access to all people deprived of their liberty in prisons and other places of detention, including to persons in isolation, in accordance with the provisions of the respective body’s mandate”. In World Health Organization, Interim Guidance – Preparedness, prevention and control of COVID-19 in prisons and other places of detention (hereafter WHO, Interim Guidance), 15 March 2020, Section 3 Planning Principles and Human Rights Considerations. 5