CAT/OP/KGZ/2
16.
The Subcommittee also notes with concern the exclusion from the new Criminal
Code of articles related to criminal liability for obstructing the activities of the National
Centre. Provisions relating to such obstruction have subsequently been transferred to a code
of misconduct, which eliminates criminal responsibility for acts of obstruction and
infringement on the mandate and activities of the mechanism.
17.
The Subcommittee observes that funding for the National Centre and its activities
has been sustainable and timely, although further adjustments to the mechanism’s budget
would enhance the mechanism’s capacity to better implement its mandate. The National
Centre has developed a need for additional staff to cover geographic and thematic areas that
are not already covered by its current composition.
18.
As a general observation, the Subcommittee believes that the Government of
Kyrgyzstan should enhance its efforts in supporting the mandate of the national preventive
mechanism, by first and foremost understanding its mandate as envisaged in the Optional
Protocol, and thereafter strengthening financial and strategical support for the mechanism,
including by giving visibility to its recommendations and enforcing their implementation.
III. Recommendations addressed to the national preventive
mechanism
A.
Recommendations relating to legal, institutional and structural issues
1.
Understanding of the mandate
19.
During its visit, the Subcommittee perceived the existence of divergent views about
the mandate of the national preventive mechanism, including inside the National Centre
itself. The law on the national preventive mechanism (art. 5) establishes the National Centre
as a legal State entity, created to assist the national authorities in fulfilling their obligations
under the Optional Protocol. The main tasks of the mechanism are enumerated in article 6
of the same law.
20.
However, the Subcommittee would like to draw attention to the mandate of national
preventive mechanisms as set out in the Optional Protocol and stress that it is of a
preventive nature.4 National preventive mechanisms should not undertake inspections and
investigations regarding, or adjudicate on, complaints concerning torture and ill-treatment,
even if they encounter such cases while carrying out their visiting function. As a general
rule, the role of a national preventive mechanism is to seek to identify patterns and detect
systemic risks of torture, and to assist the State to overcome them, for instance by providing
practical and strategic recommendations to officials at the places of deprivation of liberty
after each visit and to relevant State authorities.
21.
The Subcommittee encourages the national preventive mechanism to conduct
an exercise among its staff and the members of the coordination council to clarify the
scope and restrictions of the mechanism’s mandate as prescribed by law, to ensure a
common understanding. This exercise should also be conducted with stakeholders
whose mandates may overlap or approach that of the mechanism, in order to establish
a mutual understanding of their functions and identify grounds for cooperation.
22.
The Subcommittee recommends that the mechanism convey to the national
authorities its mandate and clarify any misunderstandings or expectations that are
not in line with the provisions of the Optional Protocol, through direct dialogue at the
ministerial and parliament levels. In doing so, the mechanism should make sure to
establish and maintain appropriate channels of communication and dialogue with
relevant authorities and advocate for working sessions with them.
23.
Despite the fact that the law on the national preventive mechanism does not provide
for any legal basis for the mechanism to handle individual complaints, the mechanism may
receive complaints from detainees on various issues while exercising its mandate. As
4
Articles 4, 19 and 20 of the Optional Protocol.
5