Commissioner’s mandate and activity in a capacity of National Preventive Mechanism (NPM)
Requirements of the Optional Protocol (OPCAT) to the UN Convention against Torture and other cruel, inhuman, or degrading treatment or punishment and national legislation:
Main objective of the OPCAT is to establish a preventive system of regular visits to places of detention by national and international bodies to eradicate torture. (The document was adopted by the UN General Assembly Resolution 57/199 dated 18 December, 2002 and entered into force on 22 June, 2006 after the ratification of the document by 20 Member States). OPCAT underlines the importance of constructive dialogue and taking preventive measures rather than based on reaction to regulatory approaches. The innovation, new legal norms and standards of the OPCAT, reflects itself not on the restoration of the violated rights, but also prevention of torture by the existed standards.
The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. The OPCAT stipulates developing national and international preventive institutions, such as the UN Subcommittee on Prevention of Torture and national preventive mechanisms (NPMs). This Subcommittee, established at the international level is considered as a new UN Treaty Body being as a subcommittee of the Committee on Prevention of Torture.
Article 17 of the OPCAT states that each State Party shall maintain, designate or establish, at the latest one year after the entry into force of the present Protocol or of its ratification or accession, one or several independent national preventive mechanisms for the prevention of torture at the domestic level. National preventive mechanisms’ mandate covers the followings:
- To regularly examine the treatment of the persons deprived of their liberty in places of detention;
- To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;
- To submit proposals and observations concerning existing or draft legislation.
In order to enable the national preventive mechanisms (NPM) to fulfill their mandate, it is the first condition to provide the functional independence while creating NPM, including its staff members;
OPCAT was signed by Azerbaijan on 15 September, 2005 whereas it was ratified by 02 December, 2008.
Since the official publication of the noted Law- 15 January, 2009, OPCAT was entered into force in relation to Azerbaijan. On the same date, the NPM functions were designated to the Commissioner by the relevant Presidential Decree.
Not only a special attention given to the issues related to fighting against torture and its prevention, organization of preventive measures, and holding awareness raising events, which are cornerstone of the Commissioner’s activity, but also its independence, impartiality and functioning in compliance with the Paris Principles become decisive factor for the activity of the NPM.
In the light of new and quite sufficient duties, the necessity of more efficient and qualified organization of the activity, stipulate the extension of either the Commissioner’s mandate or the number of her staff members. By amendments and additions applied to the relevant Constitutional Law, the scope of the competence and the independence were increased at the required level in accordance with OPCAT provisions in relation to NPMs, as well as regulations for establishing National Preventive Group (NPG) within the premises of the Ombudsman Office based on transparent procedures, selection criteria for its members, their rights and immunities were determined in order to empower the Commissioner to function as an NPM.
According to the relevant Constitutional Law, the Commissioner, herself and the NPG has the right to access police stations, temporary detention facilities, investigatory isolators, penitentiary institutions, military guardhouses, psychiatric institutions, centers for illegal migrants and other places, which detained persons cannot leave on their own will at any time, without hindrance or prior notification; to meet privately or when it deemed necessary with participation of an expert or interpreter and interview in private the detained persons, as well as any other persons who may provide relevant information; to get acquainted with and obtain copies of the documents confirming the lawfulness of detention of the detained persons; and prepare acts and document the process and the results of the actions undertaken.
The right of the Commissioner to give relevant proposals to the corresponding state bodies and to get responds to those proposals within a reasonable time was also specified by the noted above Constitutional Law.
This should be mentioned that during past years for organization of the work of the Commissioner as an NPM at high level other legislative acts have been improved. Thus, the competences of the Commissioner and the NPG as noted above were defined under the relevant legal and normative acts.
Also, this must be noted that complaints, petitions and proposals addressed by persons held in penitentiary institutions or detention centers shall not be subjected to any kind of censorship and shall be delivered accordingly within 24 hours. The applications of the detained persons addressed to the NPG are sent at the expenses of the penitentiary institutions if the applicant has no funding to do so.
At present, the functions of the NPM are carried by the Department on prevention of torture established in the Ombudsman Office after specific funding was allocated in 2012. The Department consisting of 10 staff members has two Units:
- Monitoring Unit
- Legal Analysis and Reports Unit
Staff of the Department is members of the NPG.
The key directions of the Department, which functions on the basis of the principles of respect for human rights and freedoms, transparency, rule of law, justice, impartiality, humanism and confidentiality, are as follows:
- To organize the work of the Commissioner as an NMP;
- To ensure the development of the preventive work against torture;
- To promote the preventive work against torture
The directions of the activity
The key directions of the activity of the Azerbaijani NPM are the followings:
- Preventive visits – refer to scheduled and ad-hoc, visits to the places of detention where the persons cannot leave on their own will on a regular basis, without prior notice;
- Legal analysis – refers to analyzing of the whole activity, including the materials related to findings, received proposals and recommendations, the existed or draft legislation, summarizing the whole findings and preparing relevant recommendations;
Up to date the NPM reports include over 260 recommendation and suggestions about advancing the legislation, solution of institutional problems, out of which about 70 percent have been taken into consideration and brought into practice.
- Legal advocacy – refers to the organization of legal awareness events for Ombudsman staff, NPG members, personnel of penitentiary institutions, detained persons, student and teaching staff of the relevant education and academies in order to promote the preventive work against torture, and preparing and distribution of relevant visual educational tools;
- Public affairs and international cooperation – refer to sharing information with national, regional and international organizations, as well as with foreign NPMs, mutual participation at the organized events, organization of joint events, as well as enlightening the NPM activity in press and mass media.
The NPM activity closely interlinked with the Commissioner’s mandate to investigate complaints. Thus, while investigating the incoming correspondences to the Ombudsman Office, all collected materials and the average of complaints about penitentiary institutions can also be main grounds for the planning and conducting scheduled and ad-hoc preventive visits to those particular institutions.
The outcome of the activities mentioned above, developments, and recommendations and suggestions are indicated in her specialized reports. The Reports of the previous years were translated into English and distributed.
The Commissioner in a capacity of NPM co-operates with UN and its specialized agencies, Treaty Bodies, Council of Europe, European Union, OSCE, UN Subcommittee on Prevention of Torture (SPT), European Committee for Prevention of Torture (CPT), Association for Prevention of Torture (APT) and other international and local experts and foreign NPMs.
In the frame of this co-operation along with legal education and advocacy, in order to increase professional capacity of NPG members, they are involved in trainings with running by international experts, sending to study tours for exchanging information and experiences, participating in events organized at national and international levels, which pave the way for advancing their capacities.