Presentacin de PowerPoint

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Ombudsman as an NPM Workshop Prevention of
Torture in Serbia Belgrade, March 2009
Carmen Comas-Mata Mira Head of the Office of the
1st Deputy Ombudsman Defensor del Pueblo de
España
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Introductory Remarks

• Requirements of the OPCAT for NPMs
• Independence
• Sufficiency of Financial resources
• Broad Monitoring Capacities
• Immunity
• Confidentiality
• Dialog with authorities

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Ways to fulfil the obligations of art. 17th OPCAT

• Three ways
• To support an existing mechanism (or more)
  implies the pre-existence of organizations with
  these tasks, which is not usual.
• To designate one (or more)
• To create one (or more)

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Designation of a NPM

• One or several
• If there are several, everyone of them
• would be independent
• would have all the rights and powers of access
  and information foreseen by Article 20 OPCAT
• would elaborate its own annual report
• would have free and direct relationship with the
  International Subcommittee

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Designation of various NPM Consequences

• Risk of overlappings
• Need to implement a strong coordination accepted
  and assumed by all.
• Need to determine the area of performance of
  every national mechanism to avoid duplication
  Possible contravention of art. 20?

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Art. 20 OPCAT

• There is a commitment of the Member States to
  give the following to the NPM
• c) Access to all places of detention and to their
  facilities and services
• e) Freedom to select the places of detention that
  they want to visit and the persons whom they want
  to interview
• f) The right to keep contacts with the
  Subcommittee for the Prevention, to send
  information and to meet it.
• Therefore What happens in decentralized
  States?

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Designation of a unique NPM Advantages

• It pays attention to the principle of
  indivisibility of the fundamental rights and
  makes sure of a homogeneous treatment throughout
  the entire country.
• It will surely become a powerful monitoring
  authority
• It allows a balance of the performances,
  preventing overlapping and omissions
• It establishes a clear route of dialogue with the
  Subcommittee

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Organism of Private or Public Law?

• To observe the profiles established in Part IV of
  the OPCAT it should be an Organism of Public Law.
  Why?
• Absence of entities in the general society that
  combine their specialization in these matters
  with a significant presence in the whole national
  territory
• To avoid the application of different parameters
  on the concepts of "torture", "inhumane
  treatment", "treatment or punishment" and
  "degrading treatment"
• The capacities of performance foreseen in Article
  20 are better guaranteed
• Theres a need to provide to the mechanism or
  mechanisms with an statute, surely through a
  legal instrument, which guarantees their
  functional independence as well as the principle
  of confidentiality.

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Is the Ombudsman in the best position to fulfil
these tasks? (I)

• We think so, because
• is the only non-jurisdictional institution
  regulated in the Constitution (art. 54), with the
  specific mission to protect the fundamental
  rights.
• The Ombudsman is independent
• Very wide range of possibilities of
  investigation, which the Institution has
  perfected and modulated during its more than 25
  years of experience

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Is the Ombudsman in the best position to fulfill
these tasks? (II)

• We think so, because
• the Ombudsman is entitled to request the judicial
  control of the privation of freedom through the
  writ of Habeas Corpus .
• There is a duty of all the public powers to help,
  in a preferential and urgent manner, the
  Institution in its investigations and
  inspections, reinforced with foreseen in art. 502
  Penal Code.

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Is the Ombudsman in the best position to fulfil
these tasks? (III)

• We think so, because
• magistracy of persuasion Recommendations,
  Suggestions. The process of follow-up of the
  resolutions of the Ombudsman is also the epitome
  of the constructive dialog with Administrations
• Proposals concerning legislations Through
  Recommendations, and Appeals of
  Unconstitutionality

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How would the Ombudsman carry out this functions?

• Improving the collaboration with regional
  Ombudsmen.
• Achieving agreements with professional Boards
  (doctors, and other specialized staff) to carry
  out visits to detention places.
• Creating a new Area inside the staff of the
  Ombudsman.
• Creating an Advisory Council for the Prevention
  of Torture with participation of outstanding
  personalities in this field

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• Hvala!