Independence of National Preventive Mechanisms (NPMs)
ment must grant the NPM unrestricted access to all information32
relating to the situation of individuals deprived of their liberty. In
this sense, the NPM is thus given a status that is the de facto equivalent of a government body whose activities are nevertheless not
subject to government control. The greater the degree of independence with which these preventive mechanisms are able to operate, the greater also is the likelihood that they will prove effective
in terms of human rights protection.33 It is thus only to be expected
that governments could be inclined to oppose an overly broad interpretation of the notion of functional independence, in order to
justify curbing the influence of the NPMs through imposition of legal or institutional restrictions. The extent to which a given State is
willing to grant the NPM unrestricted functional independence is
directly connected with the degree to which a State has enshrined
the fundamental principles of the rule of law and democracy.
Although the OPCAT does not contain any specific prescriptions
with regard to the institutional structure of NPMs, Article 18, para.
4, refers directly to the “Principles relating to the status of national
institutions”.34 These principles, also known as the “Paris Principles”, provide the guidelines for the establishment of the institutions in question, and compliance with them is considered imperative for ensuring the effectiveness of the NPMs.35
NPMs can be described, in principle, as National Human Rights
Institutions (NHRIs) with a specific mandate in relation to the prevention of torture.36 In order to fulfil their mandate, they must be
able to act completely independently of control by the public authorities, so that they can properly function and address all issues
relating to the treatment of individuals who have been deprived of
their liberty. In a broader sense, this means that the NPMs must be
able to act as structurally and financially autonomous bodies and to
use their resources according to their own priorities.37
Cf. OPCAT Art. 26 and FANCPT Art. 8 and Art. 10, para. 1.
32
See, inter alia. Sonia Cardenas, Chains of Justice: The Global Rise of State Institutions for Human Rights, University of
Pennsylvania Press, 2014; Katrien Meuwissen, Human Rights Law Review 15, 2015, 441–484.
33
Paris Principles, p. 4
34
Kälin/Nowak, p. 8.
35
Cf. de Beco Gauthier, Human Rights Law Review 7:2 (2007), p. 331.
36
See, e.g., Murray et al.,123ff; Nowak/McArthur, 1075.
37
Activity Report NCPT 2017
35
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