A/73/207
2.
National institutional framework
32. The effective national implementation of the prohibition of torture and ill treatment requires a robust institutional framework for the application, oversight and
enforcement of the relevant norms and standards.
(a)
Criminal justice and complaints mechanisms
33. Effective and independent complaints and investigation mechanisms, includi ng
prosecutorial and judicial authorities able to adjudicate violations and prosecute and
punish perpetrators, are vital. In practice, non-judicial complaints mechanisms often
are the weakest link in the institutional framework. In many States, such mechan isms
either do not exist or are insufficiently accessible to potential victims or jeopardized
by a lack of structural or functional independence and impartiality. Where such
mechanisms enjoy formal independence, they often depend on the same ministry as
the service under review, resulting in conflicts of interest that gravely undermine their
ability to operate as required. In many States, an alarmingly close relationship can be
observed between prosecution services, the judiciary and the police, which sever ely
undermines the separation of powers, judicial independence and the rule of law
(A/HRC/13/39/Add.5, paras. 79, 146–151, 174–175 and 255). The resulting pervasive
culture of impunity remains a significant challenge to the eradication of torture and
ill-treatment throughout the world.
(b)
Monitoring mechanisms
34. The regular and independent monitoring of places of detention by specifically
mandated human rights bodies and humanitarian organizations is one of the most
effective safeguards against torture and ill-treatment. Oversight and transparency are
therefore vital and, despite many challenges in practice, an increasing number of
States are accepting the idea of regular oversight of places of dete ntion by
international bodies such as the Subcommittee on Prevention of Torture and the
special procedures of the Human Rights Council, and by national bodies and
institutions, including NPMs, national human rights institutions (NHRIs) and civil
society organizations. ICRC has an impressive record of regular visits to persons
detained for reasons related to armed conflicts, although in non -international armed
conflicts access depends on the willingness of all belligerents.
35. The ratification of the Optional Protocol to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment by 88 States and the
fact that NPMs established thereunder have the power to visit, at any time, any place
of deprivation of liberty, including prisons, police stations, health-care settings,
immigration detention centres, social-care homes, centres for children or homes for
older persons, is a very positive development. To make NPMs truly effective, States
must fulfil their obligations under the Optional Protocol and establish mechanisms
that are formally and de facto independent from the authorities they monitor,
adequately funded and competent to monitor all places of detention regularly and
conduct private interviews with any persons deprived of their liberty.
(c)
Broader human rights environment
36. Torture and ill-treatment are more likely to persist in a system that lacks a strong
institutional human rights framework. Conversely, the presence of robust human
rights institutions can help to prevent such abuse. In particular, provided with the
necessary independence and funding, NHRIs can play a substantial role in ensuring
the harmonization and implementation of national laws and practices relevant to the
prohibition of torture and ill-treatment. More generally, a safe environment for civil
10/23
18-12051
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