OX FOR D C OM M E N TA R I E S ON

I N T E R N AT ION A L L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Professor Vaughan Lowe, Chichele Professor
of Public International Law in the University of Oxford and Fellow of
All Souls College, Oxford.

The United Nations Convention

Against Torture

A Commentary

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 The United Nations
Convention Against
Torture
A Commentary

M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R

with the contribution of

Kerstin Buchinger
Julia Kozma
Roland Schmidt
Isabelle Tschan
Ludwig Boltzmann Institute of Human Rights Vienna

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 Article 4. Obligation to allow Preventive Visits 931
visit and inspect any place where persons were or might be detained in any
State party to the OP. In its view, this was incompatible with the principle of
accountability and the need for reasonable checks and balances on any grant of
power.¹⁴ The US delegation referred to its alternative draft, submitted during
the 5th meeting¹⁵ of the Working Group on 16 January 2002, which further
elaborated ideas presented by it during previous sessions. This draft aimed to
recognize the valuable role visiting mechanisms, such as the CPT, could play
at the regional level. The delegation of Cuba found that this proposal was too
vague regarding which places of detention could be subject to visitations.
13 At its 50th meeting on 22 April 2002, the Commission on Human Rights
finally adopted the text of the OP submitted by the Chairperson-Rapporteur
at the tenth session of the Working Group by 29 votes to 10.¹⁶

3. Issues of Interpretation
3.1 Places of Detention
14 Article 4 OP goes beyond the comparable provision in Article 2 ECPT
as it contains a comprehensive definition of the term ‘deprivation of liberty’ and
explicitly refers to a ‘public or private custodial setting’. The relevant provisions
in the two paragraphs of Article 4 seem, however, to contain certain contradic-
tions and are in need of interpretation.
15 Article 4(1) contains an explicit obligation of States parties to allow visits
to any place under its jurisdiction and control where persons are or may be
deprived of their liberty, ‘either by virtue of an order given by a public authority
or at its instigation or with its consent or acquiescence’. This is a fairly broad
definition, as it also encompasses private custodial settings where persons are
detained by non-State actors with the mere knowledge and acquiescence of a
public authority. For example, if the police are aware that private paramilitary
groups hold people in detention and do nothing to prevent this, they become
complicit by acquiescence and the Subcommittee or relevant NPM must be
granted access. The same holds true for private hospitals or nursing homes,
which hold persons against their will with the mere knowledge and consent of
a public authority.

¹⁴ E/CN.4/2002/78, § 57.
¹⁵ Ibid.
¹⁶ CHR Res. 2002/33 of 22 April 2002. See above, Art. 1 OP, 2.2.

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 932 Optional Protocol
16 Article 4(2) contains, however, a somewhat more limited definition of
the term ‘deprivation of liberty’. It includes the placement of a person in a ‘pri-
vate custodial setting’, as long as that person is ‘not permitted to leave at will by
order of any judicial, administrative or other authority’. In other words, mere
consent or acquiescence, as in the examples provided above, would not be suf-
ficient, as paragraph 2 seems to require an explicit order of a public authority.
A systematic interpretation of both provisions, in accordance with the object
and purpose of the treaty to provide a comprehensive monitoring of all places
of detention, seems to require that the term ‘deprivation of liberty’ in Article
4(2) shall be interpreted in line with the broader definition of the term ‘places of
detention’ in Article 4(1) and encompasses also private and unofficial places of
detention for which the State can be held accountable.¹⁷ In any case, the visit-
ing bodies must be granted access to detention facilities which governments
have outsourced to private companies.
17 The phrase ‘where persons are or may be deprived of their liberty’ in Article
4(1) confirms that visiting mechanisms shall not be denied access to a place of
detention by the mere fact that, at the time of the visit, no persons are actually
held there. It is important that the visiting bodies have access to (allegedly)
empty places of detention, to inspect all installations, facilities, detention
registers and other relevant documents in order to verify whether the place
is actually empty and whether the conditions of detention meet the relevant
domestic and international standards.
18 Each State party is required to grant the visiting mechanisms access to
all places of detention ‘under its jurisdiction and control’. This means, on the
one hand, that the authorities have no obligation to provide access to places
of detention which are under their jurisdiction, but not under their de facto
control. If parts of a State’s territory are occupied by another State, such as the
Northern part of Cyprus which is occupied by Turkey, or administered by
a UN transitional administration, such as the territory of Kosovo in Serbia,
or under the de facto control of insurgent groups, such as certain areas con-
trolled by the LTTE in Sri Lanka, or governed by de facto authorities, such
as the territories of Abkhazia and South Ossetia in Georgia, the respective
governments are not required to provide access to the places of detention in
such territories.
19 At the same time, foreign States exercising jurisdiction and control outside
their own territories over places of detention, such as the Turkish authorities
in the Northern part of Cyprus or the US authorities at the detention

¹⁷ Cf. in this sense IIHR/APT Manual, 73.

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 Article 4. Obligation to allow Preventive Visits 933
facilities in Guantánamo Bay, Cuba, or in relation to detention facilities under
their control in Iraq and Afghanistan, are under an obligation, provided they
become States parties to the OP, to allow visits of the UN Subcommittee and
the respective NPMs.¹⁸

3.2 Missions and Visits to Places of Detention without Prior

Consent
20 The Protocol uses the term ‘visits’ in a double sense: for missions of the
Subcommittee to the territory of States parties and for visits to places of deten-
tion. For the sake of clarity, we will distinguish between both terms and apply
them in the sense envisaged in Article 1 (new) of the EU Draft.¹⁹ A mission
shall refer to the travel and all other activities carried out by the Subcommittee
in a State party’s territory. A visit means any inspection of a detention facility
by either the Subcommittee or a NPM.
21 During the drafting of the OP in the Working Group, several States
maintained that the principles of State sovereignty and territorial integrity
demand that the Subcommittee on Prevention need to obtain prior consent
from the respective government for any mission to its territory.²⁰ Other States
strongly argued that such a requirement would contradict the very purpose of
the Protocol, namely to conduct preventive visits to places of detention. The
final text constitutes the following compromise.
22 By becoming a party to the OP, States waive their sovereign right to
give prior consent to a mission by the Subcommittee to their territory. This
clearly follows from the obligation they undertake in Article 4.²¹ On the
other hand, the Subcommittee, by virtue of Article 13(2) OP, shall ‘notify
the States Parties of its programme in order that they may, without delay,
make the necessary practical arrangements for the visits to be conducted’.
Th is prior notification of a mission is in line with Article 8(1) ECPT and the
practice of the CPT, which usually informs the governments concerned sev-
eral weeks or even months in advance of its intention to carry out a mission
and of the respective dates.²²
23 During the mission, the Subcommittee is free to visit any place of deten-
tion without prior notice and consent. The same holds true for the NPMs.

¹⁸ On the notion of ‘territory under its jurisdiction’ see also above, Art. 2, 4.1.2.
¹⁹ E/CN.4/2001/WG.11/CRP.2. See above, para. 8. On this terminological problem in relation
to the ECPT see Kriebaum, 98.
²⁰ See above, 2.2.
²¹ Cf. also IIHR/APT Manual, 70.
²² Cf. Kriebaum, 180 et seq., Evans/Morgan, 184 et seq.

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 934 Optional Protocol
Although the OP does not contain any specific provision referring to unan-
nounced visits to places of detention,²³ this follows from the purpose of the OP to
allow for visits aimed at preventing torture and ill-treatment, as is spelled out
in Article 1 OP. On the other hand, the States parties are permitted by virtue
of Article 14(2) to object to a visit to a particular place of detention ‘on urgent
or compelling grounds of national defence, public safety, natural disaster or
serious disorder in the place to be visited that temporarily prevent the carrying
out of such a visit’.²⁴ Again, this compromise is in line with Article 9 ECPT.
In practice, States parties have only made use of this provision in exceptional
cases.²⁵

²³ But cf. Art. 8(1) ECPT, which at least stipulates that the CPT, after a notification of its inten-
tion to carry out a mission, ‘may at any time visit any place referred to in Article 2’. On the interpret-
ation of this provision see Kriebaum, 180 et seq., Evans/Morgan, 184 et seq.
²⁴ Cf. below, Art. 14 OP.
²⁵ Cf. Kriebaum, 112 et seq., Evans/Morgan 186 et seq.

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