Independence of National Preventive Mechanisms (NPMs)
4.4 Conclusions
Having reviewed the relevant legal bases and the manner in
which the NCPT functions, the authors of the legal opinion conclude that the administrative status of the Commission, as the
Swiss NPM, does not fulfil the criteria required for functional independence within the meaning of OPCAT Art. 18(1). They view
this as evidence of a structural disregard for the principle of
functional independence, which is causally linked to the attachment of the NCPT to the FDJP-GS.80 Notwithstanding the
fact that the Commission’s independence is anchored in administrative law and the fact that it is accordingly not subordinate to direction, it is evident that administrative attachment to the FDJP-GS
is prejudicial to the NCPT’s appearance of independence, in particular with regard to its monitoring activities in connection with of
deprivation of liberty measures for which the Confederation and,
in particular, the FDJP are responsible. The situation is further aggravated by the difficulties mentioned in connection with the
Commission’s financial autonomy. There is no doubt that the
NCPT, as a national preventive mechanism, must be institutionally
embedded. The manner in which it is institutionally embedded,
however, must be largely consistent with the prescriptions of the
OPCAT and ensure, to the greatest extent possible, that the NCPT
remains functionally independent, so that its efficacy and effectiveness are not impaired. However practical the administrative attachment of the NCPT to the FDJP-GS may appear from the Swiss
perspective, the current situation is likely to meet with criticism
internationally. In view of the expansion of the NCPT’s monitoring
activities, this could in the long run become problematic. Were the
SPT to visit Switzerland, it must be assumed that the administrative
attachment of the NCPT would meet with censure.81 In exchanges
with NMPs from other countries, with whom the NCPT maintains
regular contacts, this question raises critical issues particularly in
connection with fragile states. The prevention of torture is ranked
by the FDFA as a matter of strategic priority in Switzerland’s foreign policy82 and the responsible directorate at the FDFA is actively
Kälin/Nowak, p. 16.
80
See also Kälin/Nowak, p. 10.
81
FDFA Human Rights Strategy 2016-2019, p. 19.
82
Activity Report NCPT 2017
45
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