Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment

Adopted and opened for signature, ratification and accession by General Assembly Resolution 57/200 of 18 December 2002

entry into force 22 June 2006

Preamble

The States Parties to the present Protocol,

Reaffirming that torture and other cruel, inhuman or degrading treatment or punishment areprohibited and constitute serious violations of human rights,

Convinced that further measures are necessary to achieve the purposes of the Convention againstTorture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred toas the Convention) and to strengthen the protection of persons deprived of their liberty againsttorture and other cruel, inhuman or degrading treatment or punishment,

Recalling that articles 2 and 16 of the Convention oblige each State Party to take effective measuresto prevent acts of torture and other cruel, inhuman or degrading treatment or punishment in anyterritory under its jurisdiction,

Recognizing that States have the primary responsibility for implementing those articles, thatstrengthening the protection of people deprived of their liberty and the full respect for their humanrights is a common responsibility shared by all and that international implementing bodiescomplement and strengthen national measures,

Recalling that the effective prevention of torture and other cruel, inhuman or degrading treatmentor punishment requires education and a combination of various legislative, administrative, judicialand other measures,

Recalling also that the World Conference on Human Rights firmly declared that efforts to eradicatetorture should first and foremost be concentrated on prevention and called for the adoption of anoptional protocol to the Convention, intended to establish a preventive system of regular visits toplaces of detention,

Convinced that the protection of persons deprived of their liberty against torture and other cruel,inhuman or degrading treatment or punishment can be strengthened by non-judicial means of apreventive nature, based on regular visits to places of detention,

Have agreed as follows:

Part I: General principles

Article 1

The objective of the present Protocol is to establish a system of regular visits undertaken byindependent international and national bodies to places where people are deprived of theirliberty, in order to prevent torture and other cruel, inhuman or degrading treatment orpunishment.

Article 2

1. A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment of the Committee against Torture (hereinafter referred to as theSubcommittee on Prevention) shall be established and shall carry out the functions laid downin the present Protocol.

2. The Subcommittee on Prevention shall carry out its work within the framework of theCharter of the United Nations and will be guided by the purposes and principles thereof, aswell as the norms of the United Nations concerning the treatment of people deprived of theirliberty.

3. Equally, the Subcommittee on Prevention shall be guided by the principles ofconfidentiality, impartiality, non-selectivity, universality and objectivity.

4. The Subcommittee on Prevention and the States Parties shall cooperate in theimplementation of the present Protocol.

Article 3

Each State Party shall set up, designate or maintain at the domestic level one or severalvisiting bodies for the prevention of torture and other cruel, inhuman or degrading treatmentor punishment (hereinafter referred to as the national preventive mechanism).

Article 4

1. Each State Party shall allow visits, in accordance with the present Protocol, by themechanisms referred to in articles 2 and 3 to any place under its jurisdiction and controlwhere persons are or may be deprived of their liberty, either by virtue of an order given bya public authority or at its instigation or with its consent or acquiescence (hereinafter referredto as places of detention). These visits shall be undertaken with a view to strengthening, ifnecessary, the protection of these persons against torture and other cruel, inhuman ordegrading treatment or punishment.

2. For the purposes of the present Protocol, deprivation of liberty means any form ofdetention or imprisonment or the placement of a person in a public or private custodialsetting which that person is not permitted to leave at will by order of any judicial,administrative or other authority.

Part II: Subcommittee on Prevention

Article 5

1. The Subcommittee on Prevention shall consist of ten members. After the fiftiethratification or accession to the present Protocol, the number of the members of theSubcommittee on Prevention shall increase to twenty-five.

2. The members of the Subcommittee shall be chosen from among persons of high moralcharacter, having proven professional experience in the field of the administration of justice,in particular criminal law, prison or police administration, or in the various fields relevantto the treatment of persons deprived of their liberty.

3. In the composition of the Subcommittee due consideration shall be given to equitablegeographic distribution and to the representation of different forms of civilization and legalsystems of the States Parties.

4. In this composition consideration shall also be given to balanced gender representationon the basis of the principles of equality and non-discrimination.

5. No two members of the Subcommittee may be nationals of the same State.

6. The members of the Subcommittee shall serve in their individual capacity, shall beindependent and impartial and shall be available to serve the Subcommittee efficiently.

Article 6

1. Each State Party may nominate, in accordance with paragraph 2 of the present article, upto two candidates possessing the qualifications and meeting the requirements set out inarticle 5, and in doing so shall provide detailed information on the qualifications of thenominees.

 

2.(a)The nominees shall have the nationality of a State Party to the presentProtocol;

 

(b) At least one of the two candidates shall have the nationality of thenominating State Party;

 

(c) No more than two nationals of a State Party shall be nominated;

 

(d) Before a State Party nominates a national of another State Party, it shallseek and obtain the consent of that State Party.

3. At least five months before the date of the meeting of the States Parties during which theelections will be held, the Secretary-General of the United Nations shall address a letter tothe States Parties inviting them to submit their nominations within three months. TheSecretary-General shall submit a list, in alphabetical order, of all persons thus nominated,indicating the States Parties that have nominated them.

Article 7

1. The members of the Subcommittee on Prevention shall be elected in the followingmanner:

 

(a) Primary consideration shall be given to the fulfilment of the requirementsand criteria of article 5 of the present Protocol;

 

(b) The initial election shall be held no later than six months after the entryinto force of the present Protocol;

 

(c) The States Parties shall elect the members of the Subcommittee by secretballot;

 

(d) Elections of the members of the Subcommittee shall be held at biennialmeetings of the States Parties convened by the Secretary-General of theUnited Nations. At those meetings, for which two thirds of the States Partiesshall constitute a quorum, the persons elected to the Subcommittee shall bethose who obtain the largest number of votes and an absolute majority of thevotes of the representatives of the States Parties present and voting.

2. If during the election process two nationals of a State Party have become eligible to serveas members of the Subcommittee on Prevention, the candidate receiving the higher numberof votes shall serve as the member of the Subcommittee. Where nationals have received thesame number of votes, the following procedure applies:

 

(a) Where only one has been nominated by the State Party of which he or sheis a national, that national shall serve as the member of the Subcommittee onPrevention;

 

(b) Where both candidates have been nominated by the State Party of whichthey are nationals, a separate vote by secret ballot shall be held to determinewhich national shall become member;

(c) Where neither candidate has been nominated by the State Party of whichhe or she is a national, a separate vote by secret ballot shall be held todetermine which candidate shall be the member.

Article 8

If a member of the Subcommittee on Prevention dies or resigns, or for any cause can nolonger perform his or her duties, the State Party that nominated the member shall nominateanother eligible person possessing the qualifications and meeting the requirements set outin article 5, taking into account the need for a proper balance among the various fields ofcompetence, to serve until the next meeting of the States Parties, subject to the approval ofthe majority of the States Parties. The approval shall be considered given unless half or moreof the States Parties respond negatively within six weeks after having been informed by theSecretary-General of the United Nations of the proposed appointment.

Article 9

The members of the Subcommittee on Prevention shall be elected for a term of four years.They shall be eligible for re-election once if renominated. The term of half the memberselected at the first election shall expire at the end of two years; immediately after the firstelection the names of those members shall be chosen by lot by the Chairman of the meetingreferred to in article 7, paragraph 1 (d).

Article 10

1. The Subcommittee on Prevention shall elect its officers for a term of two years. They maybe re-elected.

2. The Subcommittee on Prevention shall establish its own rules of procedure. These rulesshall provide, inter alia, that:

 

(a) Half the members plus one shall constitute a quorum;

 

(b) Decisions of the Subcommittee on Prevention shall be made by amajority vote of the members present;

 

(c) The Subcommittee on Prevention shall meet in camera.

3. The Secretary-General of the United Nations shall convene the initial meeting of theSubcommittee on Prevention. After its initial meeting, the Subcommittee shall meet at suchtimes as shall be provided by its rules of procedure. The Subcommittee on Prevention andthe Committee against Torture shall hold their sessions simultaneously at least once a year.

Part III: Mandate of the Subcommittee on Prevention

Article 11

The Subcommittee on Prevention shall:

(a) Visit the places referred to in article 4 and make recommendations to States Partiesconcerning the protection of persons deprived of their liberty against torture and other cruel,inhuman or degrading treatment or punishment;

(b) In regard to the national preventive mechanisms:

 

(i) Advise and assist States Parties, when necessary, in their establishment;

 

(ii) Maintain direct, and if necessary confidential, contact with the nationalpreventive mechanisms and offer them training and technical assistance witha view to strengthening their capacities;

 

(iii) Advise and assist them in the evaluation of the needs and the meansnecessary to strengthen the protection of persons deprived of their libertyagainst torture and other cruel, inhuman or degrading treatment orpunishment;

 

(iv) Make recommendations and observations to the States Parties with aview to strengthening the capacity and the mandate of the national preventivemechanisms for the prevention of torture and other cruel, inhuman ordegrading treatment or punishment;

(c) Cooperate, for the prevention of torture in general, with the relevant United Nationsorgans and mechanisms as well as with the international, regional and national institutionsor organizations working towards the strengthening of the protection of all persons againsttorture and other cruel, inhuman or degrading treatment or punishment.

Article 12

In order to enable the Subcommittee on Prevention to comply with its mandate as laid outin article 11, the States Parties undertake:

(a) To receive the Subcommittee on Prevention in their territory and grant it access to theplaces of detention as defined in article 4 of the present Protocol;

(b) To provide all relevant information the Subcommittee on Prevention may request toevaluate the needs and measures that should be adopted to strengthen the protection ofpersons deprived of their liberty against torture and other cruel, inhuman or degradingtreatment or punishment;

(c) To encourage and facilitate contacts between the Subcommittee on Prevention and thenational preventive mechanisms;

(d) To examine the recommendations of the Subcommittee on Prevention and enter intodialogue with it on possible implementation measures.

Article 13

1. The Subcommittee on Prevention shall establish, at first by lot, a programme of regularvisits to the States Parties in order to fulfil its mandate as established in article 11.

2. After consultations, the Subcommittee on Prevention shall notify the States Parties of itsprogramme in order that they may, without delay, make the necessary practical arrangementsfor the visits to be conducted.

3. The visits shall be conducted by at least two members of the Subcommittee onPrevention. These members may be accompanied, if needed, by experts of demonstratedprofessional experience and knowledge in the fields covered by the present Protocol whoshall be selected from a roster of experts prepared on the basis of proposals made by theStates Parties, the Office of the United Nations High Commissioner for Human Rights andthe United Nations Centre for International Crime Prevention. In preparing the roster, theStates Parties concerned shall propose no more than five national experts. The State Partyconcerned may oppose the inclusion of a specific expert in the visit, whereupon theSubcommittee on Prevention shall propose another expert.

4. If the Subcommittee on Prevention considers it appropriate, it may propose a short follow-up visit after a regular visit.

Article 14

1. In order to enable the Subcommittee on Prevention to fulfil its mandate, the States Partiesto the present Protocol undertake to grant it:

 

(a) Unrestricted access to all information concerning the number of personsdeprived of their liberty in places of detention as defined in article 4, as wellas the number of places and their location;

 

(b) Unrestricted access to all information referring to the treatment of thosepersons as well as their conditions of detention;

(c) Subject to paragraph 2 below, unrestricted access to all places ofdetention and their installations and facilities;

 

(d) The opportunity to have private interviews with the persons deprived oftheir liberty without witnesses, either personally or with a translator ifdeemed necessary, as well as with any other person who the Subcommitteeon Prevention believes may supply relevant information;

 

(e) The liberty to choose the places it wants to visit and the persons it wantsto interview.

2. Objection to a visit to a particular place of detention may be made only on urgent andcompelling grounds of national defence, public safety, natural disaster or serious disorder inthe place to be visited that temporarily prevent the carrying out of such a visit. The existenceof a declared state of emergency as such shall not be invoked by a State Party as a reason toobject to a visit.

Article 15

No authority or official shall order, apply, permit or tolerate any sanction against any personor organization for having communicated to the Subcommittee on Prevention or to itsdelegates any information, whether true or false, and no such person or organization shall beotherwise prejudiced in any way.

Article 16

1. The Subcommittee on Prevention shall communicate its recommendations andobservations confidentially to the State Party and, if relevant, to the national preventivemechanism.

2. The Subcommittee on Prevention shall publish its report, together with any comments ofthe State Party concerned, whenever requested to do so by that State Party. If the State Partymakes part of the report public, the Subcommittee on Prevention may publish the report inwhole or in part. However, no personal data shall be published without the express consentof the person concerned.

3. The Subcommittee on Prevention shall present a public annual report on its activities tothe Committee against Torture.

4. If the State Party refuses to cooperate with the Subcommittee on Prevention according toarticles 12 and 14, or to take steps to improve the situation in the light of the Subcommittee’srecommendations, the Committee against Torture may, at the request of the Subcommitteeon Prevention, decide, by a majority of its members, after the State Party has had anopportunity to make its views known, to make a public statement on the matter or to publishthe report of the Subcommittee.

Part IV: National preventive mechanisms

Article 17

Each State Party shall maintain, designate or establish, at the latest one year after the entryinto force of the present Protocol or of its ratification or accession, one or severalindependent national preventive mechanisms for the prevention of torture at the domesticlevel. Mechanisms established by decentralized units may be designated as nationalpreventive mechanisms for the purposes of the present Protocol if they are in conformity withits provisions.

Article 18

1. The States Parties shall guarantee the functional independence of the national preventivemechanisms as well as the independence of their personnel.

2. The States Parties shall take the necessary measures to ensure that the experts of thenational preventive mechanism have the required capabilities and professional knowledge.They shall strive for a gender balance and the adequate representation of ethnic and minoritygroups in the country.

3. The States Parties undertake to make available the necessary resources for the functioningof the national preventive mechanisms.

4. When establishing national preventive mechanisms, States Parties shall give dueconsideration to the Principles relating to the status of national institutions for the promotionand protection of human rights.

Article 19

The national preventive mechanisms shall be granted at a minimum the power:

(a) To regularly examine the treatment of the persons deprived of their liberty in places ofdetention as defined in article 4, with a view to strengthening, if necessary, their protectionagainst torture, cruel, inhuman or degrading treatment or punishment;

(b) To make recommendations to the relevant authorities with the aim of improving thetreatment and the conditions of the persons deprived of their liberty and to prevent tortureand cruel, inhuman or degrading treatment or punishment, taking into consideration therelevant norms of the United Nations;

(c) To submit proposals and observations concerning existing or draft legislation.

Article 20

In order to enable the national preventive mechanisms to fulfil their mandate, the StatesParties to the present Protocol undertake to grant them:

(a) Access to all information concerning the number of persons deprived of their liberty inplaces of detention as defined in article 4, as well as the number of places and their location;

(b) Access to all information referring to the treatment of those persons as well as theirconditions of detention;

(c) Access to all places of detention and their installations and facilities;

(d) The opportunity to have private interviews with the persons deprived of their libertywithout witnesses, either personally or with a translator if deemed necessary, as well as withany other person who the national preventive mechanism believes may supply relevantinformation;

(e) The liberty to choose the places they want to visit and the persons they want to interview;

(f) The right to have contacts with the Subcommittee on Prevention, to send it informationand to meet with it.

Article 21

1. No authority or official shall order, apply, permit or tolerate any sanction against anyperson or organization for having communicated to the national preventive mechanism anyinformation, whether true or false, and no such person or organization shall be otherwiseprejudiced in any way.

2. Confidential information collected by the national preventive mechanism shall beprivileged. No personal data shall be published without the express consent of the personconcerned.

Article 22

The competent authorities of the State Party concerned shall examine the recommendationsof the national preventive mechanism and enter into a dialogue with it on possibleimplementation measures.

Article 23

The States Parties to the present Protocol undertake to publish and disseminate the annualreports of the national preventive mechanisms.

Part V: Declaration

Article 24

1. Upon ratification, States Parties may make a declaration postponing the implementationof their obligations either under part III or under part IV of the present Protocol.

2. This postponement shall be valid for a maximum of three years. After due representationsmade by the State Party and after consultation with the Subcommittee on Prevention, theCommittee against Torture may extend that period for an additional two years.

Part VI: Financial Provisions

Article 25

1. The expenditure incurred by the Subcommittee on Prevention in the implementation ofthe present Protocol shall be borne by the United Nations.

2. The Secretary-General of the United Nations shall provide the necessary staff andfacilities for the effective performance of the functions of the Subcommittee under thepresent Protocol.

Article 26

1. A Special Fund shall be set up in accordance with the relevant procedures of the GeneralAssembly, to be administered in accordance with the financial regulations and rules of theUnited Nations, to help finance the implementation of the recommendations made by theSubcommittee on Prevention after a visit to a State Party, as well as education programmesof the national preventive mechanisms.

2. The Special Fund may be financed through voluntary contributions made byGovernments, intergovernmental and non-governmental organizations and other private orpublic entities.

Part VII: Final Provisions

Article 27

1. The present Protocol is open for signature by any State that has signed the Convention.

2. The present Protocol is subject to ratification by any State that has ratified or acceded tothe Convention. Instruments of ratification shall be deposited with the Secretary-General ofthe United Nations.

3. The present Protocol shall be open to accession by any State that has ratified or accededto the Convention.

4. Accession shall be effected by the deposit of an instrument of accession with theSecretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States that have signed thepresent Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Article 28

1. The present Protocol shall enter into force on the thirtieth day after the date of depositwith the Secretary-General of the United Nations of the twentieth instrument of ratificationor accession.

 

2. For each State ratifying the present Protocol or acceding to it after the deposit with theSecretary-General of the United Nations of the twentieth instrument of ratification oraccession, the present Protocol shall enter into force on the thirtieth day after the date ofdeposit of its own instrument of ratification or accession.

Article 29

The provisions of the present Protocol shall extend to all parts of federal States without anylimitations or exceptions.

Article 30

No reservations shall be made to the present Protocol.

Article 31

The provisions of the present Protocol shall not affect the obligations of States Parties underany regional convention instituting a system of visits to places of detention. TheSubcommittee on Prevention and the bodies established under such regional conventions areencouraged to consult and cooperate with a view to avoiding duplication and promotingeffectively the objectives of the present Protocol.

Article 32

The provisions of the present Protocol shall not affect the obligations of States Parties to thefour Geneva Conventions of 12 August 1949 and the Additional Protocols thereto of 8 June1977, nor the opportunity available to any State Party to authorize the InternationalCommittee of the Red Cross to visit places of detention in situations not covered byinternational humanitarian law.

Article 33

1. Any State Party may denounce the present Protocol at any time by written notificationaddressed to the Secretary-General of the United Nations, who shall thereafter inform theother States Parties to the present Protocol and the Convention. Denunciation shall takeeffect one year after the date of receipt of the notification by the Secretary-General.

2. Such a denunciation shall not have the effect of releasing the State Party from itsobligations under the present Protocol in regard to any act or situation that may occur priorto the date at which the denunciation becomes effective, or to the actions that theSubcommittee on Prevention has decided or may decide to take with respect to the StateParty concerned, nor shall denunciation prejudice in any way the continued consideration ofany matter already under consideration by the Subcommittee on Prevention prior to the dateat which the denunciation becomes effective.

3. Following the date at which the denunciation of the State Party becomes effective, theSubcommittee on Prevention shall not commence consideration of any new matter regardingthat State.

Article 34

1. Any State Party to the present Protocol may propose an amendment and file it with theSecretary-General of the United Nations. The Secretary-General shall thereuponcommunicate the proposed amendment to the States Parties to the present Protocol with arequest that they notify him whether they favour a conference of States Parties for thepurpose of considering and voting upon the proposal. In the event that within four monthsfrom the date of such communication at least one third of the States Parties favour such aconference, the Secretary-General shall convene the conference under the auspices of theUnited Nations. Any amendment adopted by a majority of two thirds of the States Partiespresent and voting at the conference shall be submitted by the Secretary-General of theUnited Nations to all States Parties for acceptance.

2. An amendment adopted in accordance with paragraph 1 of the present article shall comeinto force when it has been accepted by a two-thirds majority of the States Parties to thepresent Protocol in accordance with their respective constitutional processes.

3. When amendments come into force, they shall be binding on those States Parties that haveaccepted them, other States Parties still being bound by the provisions of the present Protocoland any earlier amendment that they have accepted.

Article 35

Members of the Subcommittee on Prevention and of the national preventive mechanismsshall be accorded such privileges and immunities as are necessary for the independentexercise of their functions. Members of the Subcommittee on Prevention shall be accordedthe privileges and immunities specified in section 22 of the Convention on Privileges andImmunities of the United Nations of 13 February 1946, subject to the provisions of section23 of that Convention.

Article 36

When visiting a State Party, the members of the Subcommittee on Prevention shall, withoutprejudice to the provisions and purposes of the present Protocol and such privileges andimmunities as they may enjoy:

(a) Respect the laws and regulations of the visited State;

(b) Refrain from any action or activity incompatible with the impartial and internationalnature of their duties.

Article 37

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanishtexts are equally authentic, shall be deposited with the Secretary-General of the UnitedNations.

2. The Secretary-General of the United Nations shall transmit certified copies of the presentProtocol to all States.