CAT/OP/CHE/RONPM/1 III. Concerns and recommendations addressed to the national preventive mechanism A. Recommendations relating to legal, institutional and structural issues Structure and independence 19. From a structural point of view, the Subcommittee notes that the institutional identity of the National Commission for the Prevention of Torture is not distinct from that of the Federal Department of Justice and Police. This hinders recognition of the Commission as an independent entity in the field of torture prevention. 20. Although mechanisms that are compliant with the Optional Protocol can take a range of forms, the mechanism must nevertheless be structured in such a manner that it can carry out its mandate in accordance with the principles set forth in the Optional Protocol, the Subcommittee’s guidelines on national preventive mechanisms (CAT/OP/12/5) and the compilation of advice provided by the Subcommittee in response to requests from national preventive mechanisms, annexed to its ninth annual report (CAT/C/57/4). 21. Experience has shown that a national preventive mechanism can exercise its mandate more effectively if it is fully independent, and if that independence is realized and reflected in its structure, status, operation and staffing. 22. The budget of the National Commission for the Prevention of Torture is subsumed within that of the General Secretariat of the Federal Department of Justice and Police. The Commission does not appear to be autonomous, as the General Secretariat controls its budget. With an overall yearly budget of 960,600 Swiss francs, the Commission has only limited flexibility with regard to its operating expenses, which obliges it to strictly prioritize expenditure, thereby limiting its ability to effectively perform its tasks. 23. The administrative status of the National Commission for the Prevention of Torture was assessed in the legal opinion drafted by Walter Kälin and Manfred Nowak, who found that the Commission was not a legally independent administrative unit and that it had no legal personality. 2 The opinion also states that, because the General Secretariat of the Federal Department of Justice and Police exercises administrative oversight over the Commission, the criteria for the independence of the national preventive mechanism set out in article 18 (1) of the Optional Protocol are not met. 24. The legal opinion is based on a legal interpretation of the operational independence of national preventive mechanisms within the meaning of article 18 (1) of the Optional Protocol and in the light of international law, the practice of the Subcommittee and the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles). 25. The Subcommittee welcomes the willingness shown by the National Commission for the Prevention of Torture, in its dialogue with the State party, to sever its administrative and budgetary links with the Federal Department of Justice and Police so that it can operate independently and carry out activities and functions that are formally separate from those of that federal entity. This will be made possible by the Commission’s having its own structure, status, staff and budget. Financial resources 26. The Federal Council dispatch regarding Federal Act No. 150.1, which established the National Commission for the Prevention of Torture, states that the Commission is expected to carry out between 20 and 30 visits to places of deprivation of liberty a year. 3 2 3 GE.21-03810 W. Kälin and M. Nowak, Rechtliche Aspekte der Unabhängigkeit der Unabhängigkeit der Nationalen Kommission zur Verhütung der Folter (NKVF), legal opinion addressed to the National Commission for the Prevention of Torture, 2017, p. 10. Switzerland, Federal Council, Message relatif à un projet d’arrêté fédéral portant approbation et mise en œuvre du Protocole facultatif se rapportant à la Convention contre la Torture et autres 5