CAT/OP/TUN/2
II. Legal framework of the national preventive mechanism
8.
The Subcommittee notes with satisfaction the legislative framework establishing the
National Authority for the Prevention of Torture. It also welcomes the fact that the
definitions of deprivation of liberty and places of detention under article 2 of Organic Act
No. 2013-43 of 23 October 2013 comply with article 4 of the Optional Protocol. In addition,
it notes with satisfaction the provisions giving the Authority the right, inter alia, to carry out
regular and unannounced visits to places of detention, to interview detainees in private and
to make specific recommendations to the Government. The Subcommittee remains
concerned, however, about a number of gaps and shortcomings in the Act. It highlights in
particular:
(a)
The fact that places of detention under the jurisdiction or control of the
Ministry of the Interior and the Ministry of National Defence, particularly police stations
and military prisons, are not explicitly mentioned in article 2 of the Act, which may give
rise to restrictive interpretations of the powers of the mechanism and may directly
undermine its mandate and its work;
(b)
The fact that the current normative framework does not guarantee the full
independence of the mechanism, in accordance with article 18 of the Optional Protocol,
since the criteria for the independence and impartiality of members of the mechanism, as
referred to in article 6 of the Act, remain unclear and poorly defined; and possible conflicts
of interest that could arise from the appointment to the mechanism of public officials,
including a serving judge and an official of the child protection service of the Ministry for
Women, Family and Children;
(c)
Reports that the procedure for selecting and appointing members has not
been sufficiently transparent or participatory;
(d)
The fact that the eligibility criteria listed in article 6 of the Act do not refer to
the expertise and competencies of the mechanism’s members in the field of torture
prevention, which has reportedly resulted in the election of a number of candidates who do
not have the skills and knowledge required to carry out their functions effectively;
(e)
The fact that the authorities can, under article 13 of the Act, refuse requests
for access to a place of detention by invoking national defence and security interests or the
existence of a natural disaster or “serious disorder” at the place of detention in question.
9.
The Subcommittee urges the mechanism, in accordance with article 3 (5) of Organic
Act No. 2013-43 of 23 October 2013 and article 19 (c) of the Optional Protocol, which
mandate it to issue opinions on existing legislation or draft legislation on the prevention of
torture, to advocate for the legal framework under which it was established to be
strengthened. In so doing, the mechanism should make recommendations for amendments
to the Act to bring it fully into line with the Optional Protocol, the Guidelines on national
preventive mechanisms (CAT/OP/12/5) and the Principles relating to the status of national
institutions for the promotion and protection of human rights (Paris Principles).
10.
More specifically, the mechanism should encourage the competent State party
authorities to:
(a)
Make the necessary amendments to the Act so that it fully complies with
the provisions of articles 4 and 20 of the Optional Protocol and ensure that the
mechanism has unhindered access to all places of detention, including those under the
jurisdiction of the Ministry of the Interior and the Ministry of National Defence;
(b)
Ensure that future members of the mechanism are appointed through a
fully transparent, participatory procedure on the basis of publicly announced criteria
that are in compliance with article 18 of the Optional Protocol;
(c)
Take all necessary measures to ensure the independence of the
mechanism and its credibility with the general public and, in particular, with victims,
notably by ensuring that all its members, including those from civil society, are able to
serve on a full-time basis in order to avoid any real or perceived conflict of interest;
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