Universal Panacea for Ill-treatment or Much Ado About Nothing : Assessment of National Mechanisms for the Prevention of Torture Established Under the Optional Protocol to the UN Convention against Torture

Abstract

UNIVERSAL PANACEA FOR ILL-TREATMENT OR MUCH ADO ABOUT NOTHING Assessment of NPMs Established Under the OPCAT Introduction This thesis examined effectiveness of NPMs established under the OPCAT in preventing ill-treatment and impact of external factors upon the final outcome. Effectiveness was determined by clarifying whether selected NPMs met the requirements considered necessary for successful prevention of ill-treatment: satisfied formal and practical criteria, produced a deterrent effect, enhanced transparency of closed institutions and improved treatment of detainees. To that end qualitative assessment of NPMs´ performance in three jurisdictions displaying different scores on variables presumed causal — level of democracy, rule of law and strength of institutions, observance of human rights, economic development and level of corruption — has been conducted. Performance of NPMs was considered a dependent variable to be interpreted in the light of the indicated independent variables. Three hypothesis on a possible correlation between the final results and identified variables were suggested:

• NPM proved to be most effective in an established democracy, less so in semi-democracy and least effective in autocracy. • NPM proved to be most effective in semi-democracy, less so in an established democracy and least effective in autocracy. • Effectiveness of NPMs is not related to any of the proposed models. Germany, Serbia and Azerbaijan have been selected because they exhibit different scores on the main independent variables deemed causal.

Major findings The results of this research indicate that none of the selected NPMs lived up to standards governing their designation and functioning and thus underperformed. If one imagines two basic poles of a scale displaying NPMs performance: meeting their potential to prevent ill-treatment in full (16 points) and utter failure to do so (0 points) the present research submits the following ranking: Serbia (8 points); Germany (7 points); Azerbaijan (4 points). How does this relate to the three preliminary hypothesis?

• As performance of the German NPM did not prove to be superior to that of its Serbian counterpart, the first hypothesis does not hold. • Although results support, albeit marginally, the second hypothesis, Serbian NPM did not perform considerably better than its German counterpart. • It appears that the third hypothesis, suggesting no sound inferences between the performance of NPMs and examined variables, corresponds most closely to the established facts. Taking into account that the performance of selected NPMs was, to a greater or a lesser extent, unsatisfactory in most respects, one can posit the results of the research somewhere between the second and the third hypothesis. However, further differentiation is called for as careful reading of this thesis suggests that NPMs underperformed due to basically different reasons. Namely, Serbian and German NPMs underachieved largely because of lack of proper financing and frequent unannounced visits to places of detention. In case of the Azeri NPM substandard performance took place despite of being adequately funded and carrying out frequent unannounced visits. It follows that setting up an NPM in accordance with best practices and securing adequate financing is neither certain in established democracies nor sufficient in autocracies for an NPM to be effective. The main failure of Serbian and Azerbaijan NPMs concerns their inability to turn the tide in respect of deliberate ill-treatment fuelled, inter alia, by the passivity of judiciary and other institutions. German NPM failed to verify that deliberate ill-treatment does not take place. It appears that the German NPM does not consider torture, a pressing issue that should be taken seriously and prevented seriously. Common for all three is their inability to determine the extent of state compliance with their recommendations.

Further inferences A trade-off effect between the frequency of visits and number of institutions falling under NMPs´ mandate has been identified: with an increase of institutions that are to be visited, ability of NPMs to reach a satisfactory frequency of visits decreases and vice versa. This research indicates that NPMs, by announcing visits, opt to preserve good relations with the authorities. This may be a consequence of an innate flaw of NPM design as it was intended to be sufficiently detached from the state to be objective and yet close enough to visit closed institutions at will and improve status of persons deprived of liberty. It appears that these traits are hard to reconcile in practice. Another plausible consequence of the indicated limitation is strong focus on material conditions at the expense of preventing torture and other deliberate ill-treatment. All three NPMs underperformed in preventing ill-treatment of persons residing in psychiatric hospitals and social institutions.