CAT/OP/DEU/2
15.
The SPT notes the allegations by the Federal and State authorities with which it met
that no incidents of torture had recently been reported in Germany, and that a number of
mechanisms monitored places of detention. This, however, does not diminish the
significance of the mandate of the NPM to prevent torture and other cruel, inhuman or
degrading treatment or punishment.
16.
Notwithstanding the willingness of the Federal and State authorities to ensure
compliance with the Optional Protocol, the SPT notes that there are legal, structural and
institutional problems which may jeopardize the efficiency and the institutional credibility
of the NPM as a whole. The authorities will therefore be required to address, for instance,
institutional factors such as the current size, selection and composition of the NPM and its
limited role in terms of commenting on the draft legislation, and in particular, the issue of
adequate budgetary and personnel resources.
17.
The lack of adequate resources for the NPM has been questioned by other
international monitoring mechanisms, including the United Nations Committee against
Torture, the United Nations Special Rapporteur on Torture and the European Committee for
the Prevention of Torture. Therefore a number of legal, structural and institutional problems
will be raised by the SPT in its separate and confidential report to the authorities, in
accordance with article 11 (b), subparagraph (iv), of the Optional Protocol.
Recommendations relating to main legal, structural and institutional issues
National Agency
18.
While the Optional Protocol leaves the decision regarding the institutional format of
the NPM to the State Party, it is imperative that the mechanism be structured and that it
carries out its mandate in accordance with the Optional Protocol, as reflected in the SPT
Guidelines on national preventive mechanisms.4
19.
The SPT recommends that the NPM evaluate, where relevant, together with the
concerned Federal and State authorities and other stakeholders, its activities and
experience in order to ensure that it is exercising its mandate in accordance with the
Optional Protocol and the SPT Guidelines on national preventive mechanisms. The
SPT also recommends that the mechanism develop a strategic development work plan
to set priorities and improve its operation in order to help achieve financial and
operational independence of the NPM, with due consideration to the Paris Principles,
in accordance with article 18, paragraph 1, of the Optional Protocol.5
20.
The SPT underscores that according to the part IV of the Optional Protocol, the role
of the NPM is not to monitor existing monitoring mechanisms, but to exercise its own
mandate to strengthen the protection of persons deprived of their liberty from torture and
other cruel, inhuman or degrading treatment or punishment. At the same time, duplication
of work and tasks should be avoided in order to use the resources efficiently, as well as not
to send out mixed messages.
21.
The SPT recommends that whilst exercising its own visiting mandate, the NPM
cooperate with the other existing mechanisms which monitor places of deprivation of
liberty in order to seek possible synergies, including in the context of monitoring
houses for the elderly. The SPT in particular recommends that the Joint Commission
cooperate with the Municipal Supervisions of houses for the elderly as those
4
5
CAT/OP/12/5.
CAT/OP/12/5, paras. 33 and 12.
5