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advantages and disadvantages. By designating an existing institution such as the
national human rights institution, the national preventive mechanism may benefit
from that institution’s previous experience and positive and visible public profile.
On the other hand, it may take over potential problems and shortcomings of the
existing institution in terms of public perception, a narrow mandate and a lack of
resources. The establishment of an entirely new body may require additional efforts
and resources but enables States parties to model the mechanism precisely according
to the requirements of the Optional Protocol, instead of making amendments to
existing legislation. The ideal model depends on the specific circumstances of each
State.
82. Most fundamentally, States should provide their national preventive mechanism
with a clear legal basis specifying its powers and ensuring its complete independence
from the State authorities. Regrettably, some States fail to provide their national
preventive mechanism with the necessary security and stability. This is the case, for
example, in Mali, where no express guarantees or powers foreseen by the Optional
Protocol are provided, or in Maldives and Mauritius, where the mandate of the
national preventive mechanism is only based on a governmental decree. In order to
provide the national preventive mechanism with the stability and authority needed
for the execution of its difficult tasks, States parties should enact a specific national
law establishing the mechanism, as in France and Luxembourg. That law must be in
strict compliance with the Optional Protocol. This includes ensuring its complete
functional independence and the complete independence of its staff, which implies
that members of the national preventive mechanism must not be representatives of
the Government, as is the case in Mali, and must maintain no close personal ties to
the authorities to be inspected, as is the case in the Republic of Moldova.
83. Even the most independent national preventive mechanism with the strongest
mandate cannot function without sufficient resources. Therefore, article 18,
paragraph 3, of the Optional Protocol expressly requires States to provide “the
necessary resources for the functioning of the national preventive mechanisms”.
However, lack of resources remains one of the main problems of existing national
preventive mechanisms, as the task of regularly monitoring all places of detention is
very complex and costly. It is by the allocation of adequate resources that States
parties demonstrate their genuine commitment to the prevention of torture. France
set a positive example by assigning extensive human and financial (2.5 million
euros) resources to its national preventive mechanism. Similarly, New Zealand has
considerably increased the resources of its national preventive mechanism after the
first year of functioning. The Special Rapporteur and the Subcommittee on
Prevention of Torture previously raised the concern that some States that had
designated existing institutions as national preventive mechanisms had not allocated
sufficient additional resources, for example Denmark, Maldives and Sweden. A
particularly worrying example is Germany, where the national preventive
mechanism has an alarming lack of human and financial resources. As the country
with the largest population in Europe, it is merely assigning four part-time unpaid
staff members to the regional national preventive mechanism body and one unpaid
person to the federal national preventive mechanism body, with a budget of only
300,000 euros. The Special Rapporteur has previously criticized these resources as
being insufficient to allow the national preventive mechanism to fulfil the task of
regular, systematic monitoring of all places of detention.
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