Part III: A systematic change perspective Building Block 1: Situation analysis Relevant questions • How do we make sure that we understand correctly what is happening in places of detention? • How do we apply the fact-finding methods in an adequate way? • How do we go about evaluating the situation? In light of which standards (national, international human rights standards, other standards)? What do we do if there are no standards? Do we use human rights standards correctly? • How are we able to identify systemic causes and structural fault lines leading to human rights violations in closed institutions? Any strategy to improve the situation in the areas of applicability of the OPCAT requires a proper understanding of what is happening in and at places of detention. A sound factual basis is indispensable for any attempt to achieve change. The OPCAT and the national laws implementing the OPCAT provide the necessary framework and tools for the NPM to understand the situation in places where persons are deprived of their liberty. The main tool for this purpose is the visit, including inter alia the unrestricted access to all places of detention and persons deprived of their liberty as well as to all relevant accompanying information. A sound methodology for carrying out visits and tailor-made training of NPM personnel to this effect helps to ensure that monitoring bodies gather the relevant data in order to adequately understand the situation at hand in a correct way. Several NPM representatives stressed the fundamental role that sound evidence and accuracy in fact-finding play in having impact.260 The facts found during the visit are then evaluated against normative standards, which are typically a combination of national and international human rights standards, in particular ‘the norms of the United Nations regarding the treatment of persons deprived of their liberty’.261 The applicable international standards are a mixture of hard law and soft law, with quite detailed provisions in some areas (e.g. prisons) and a lack of clear standards in other areas (e.g. social care homes). The fact that the framework for evaluating the factual situations is a human rights framework tends to add importance to the work of NPMs. Human rights language has also by now developed into a strong moral language.263 In order to promote systemic/structural change, the situation analysis cannot stop at merely pointing at the problems found and assessing them against national or international standards. This is a basic understanding of any systematic approach to sustainable change. It is not about treating the symptoms but looking at the causes. This is also very clear in the OPCAT context: NPMs have to look at the systemic causes and structural fault lines which are conditioning the problems identified.264 One can argue that this is a defining characteristic of preventive human rights monitoring as such. Understanding the causes of human rights violations entails an analysis of their origins as well as an identification of where they are to be found. Are they rooted in legal deficiencies? Are they related to a public policy which is in contradiction with human rights principles? Are they characteristic of the broader organisational/institutional setting in which places of detention are located? Or are they directly caused by E.g. the UK HMIP. Art 2(2) OPCAT. 262 See APT Database on detention issues: <http://www.apt.ch/detention-focus/>. 263 See M Midgley, ‘Towards an ethic of global responsibility’ in T Dunne and NJ Wheeler (eds), Human Rights in Global Politics (1999) 160. 264 Implied in SPT’s guiding principles to preventive mandate see SPT, UN Doc CAT/OP/12/6, para 5. 260 261 - 91 -