United Nations

CAT/OP/12/6
Distr.: General

Optional Protocol to the Convention against Torture and Other 30 December 2010
Cruel, Inhuman or Degrading Treatment or Punishment
Original: English

Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment
Twelfth session
Geneva, 15-19 November 2010

The approach of the Subcommittee on Prevention of Torture to the concept of
prevention of torture and other cruel, inhuman or degrading treatment or
punishment under the Optional Protocol to the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment
I.Introduction
1.It is beyond doubt that States Parties to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (“the Optional Protocol”) are under a legal obligation to “prevent” torture and other cruel,
inhuman or degrading treatment or punishment. Article 2, paragraph 1, of the Convention, to which all States Parties to the Optional
Protocol must also be parties, provides that “Each State Party shall take effective legislative, administrative, judicial or other measures
to prevent acts of torture in any territory under its jurisdiction”. Article 16, paragraph 1, of the Convention extends this obligation,
providing that “each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or
degrading treatment of punishment which do not amount to torture…”. As explained by the Committee against Torture in its general
comment No. 2, “article 2, paragraph 1, obliges each State party to take actions that will reinforce the prohibition against torture”.
Whilst the obligation to prevent torture and ill-treatment buttresses the prohibition of torture, it also remains an obligation in its own
right and a failure to take appropriate preventive measures which were within its power could engage the international responsibility of
the State, should torture occur in circumstances where the State would not otherwise have been responsible.
2.Drawing attention to article 2 of the Convention, the International Court of Justice has observed that “the content of the duty to
prevent varies from one instrument to another, according to the wording of the relevant provisions, and depending on the nature of the
acts to be prevented”. The Committee has said that the duty to prevent is “wide-ranging” and has indicated that the content of that
duty is not static since “the Committee’s understanding of and recommendations in respect of effective measures are in a process of
continual evolution” and so are “not limited to those measures contained in the subsequent articles 3 to 16.”
3.The Subcommittee on Prevention of Torture is of the view that, as these comments suggest, it is not possible to devise a
comprehensive statement of what the obligation to prevent torture and ill-treatment entails in abstracto. It is of course both possible
and important to determine the extent to which a State has complied with its formal legal commitments as set out in international
instruments and which have a preventive impact but whilst this is necessary it will rarely be sufficient to fulfil the preventive obligation:
it is as much the practice as it is the content of a State’s legislative, administrative, judicial or other measures which lies at the heart of
the preventive endeavour. Moreover, there is more to the prevention of torture and ill-treatment than compliance with legal
commitments. In this sense, the prevention of torture and ill-treatment embraces – or should embrace – as many as possible of those
things which in a given situation can contribute towards the lessening of the likelihood or risk of torture or ill-treatment occurring. Such
an approach requires not only that there be compliance with relevant international obligations and standards in both form and
substance but that attention also be paid to the whole range of other factors relevant to the experience and treatment of persons
deprived of their liberty and which by their very nature will be context specific.
4.It is for this reason that the Optional Protocol seeks to strengthen the protection of persons deprived of their liberty, not by setting
out additional substantive preventive obligations but in contributing to the prevention of torture by establishing, at both the international
and national levels, a preventive system of regular visits and the drawing up of reports and recommendations based thereon. The
purpose of such reports and recommendations is not only to bring about compliance with international obligations and standards but
to offer practical advice and suggestions as to how to reduce the likelihood or risk of torture or ill-treatment occurring and will be
firmly based on, and informed by, the facts found and circumstances encountered during the visits undertaken. As a result, the
Subcommittee is of the view that it is best able to contribute to prevention by expanding on its understanding of how best to fulfil its
mandate under the Optional Protocol rather than by setting out its views on what prevention may or may not require either as an
abstract concept or as a matter of legal obligation. Nevertheless, there are a number of key principles which guide the
Subcommittee’s approach to its preventive mandate and which it believes it would be useful to articulate.

II.Guiding principles
5.The guiding principles are the following:

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