NATIONAL MECHANISM FOR PREVENTION OF TORTURE


The Defensor as National Mechanism for the Prevention of Torture and other Cruel, Inhuman or Degrading Treament

The Optional Protocol of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment came into effect on January, 22, 2006, and aims to prevent torture through the establishment of a system of periodic visits to sites of involuntary deprivation of liberty by an international body (the Subcommittee for the Prevention of Torture, based in Geneva) and through national mechanisms for the prevention of torture.

Following Spain’s signing of the Optional Protocol, the Spanish Parliament decided in late 2009 to assign the status of National Mechanism for the Prevention of Torture to the Spanish Ombudsman (Defensor del Pueblo), according to Organic Law 1/2009 of November 3rd, 2009 which introduces a sole final disposition to Organic Law of the Defensor del Pueblo. Since the beginning of its work as a mechanism to defend and protect the Fundamental Rights, the Defensor had already worked to prevent torture.

The National Mechanism for the Prevention of Torture for Spain, as an independent body, carries out a system of periodic visits to places of involuntary detention and deprivation of liberty with the objective of preventing torture and other cruel, inhumane or degrading punishment.

Among the many powers of the Defensor del Pueblo to defend and protect Fundamental Rights, its status as National Preventative Mechanism (NPM) comes with a fundamental mission to ensure compliance with the provisions of Articles 15 and 17 of the Spanish Constitution.

In order to exercise this function, the NPM carries out visits to those places of involuntary detention and deprivation of liberty that are under the various Spanish Public Administrations. The purpose of these inspections is to verify that Spanish public authorities and personnel act in conformity with the criteria required by Spanish law and internationally accepted for these types of institutions, to the effect that they do not foster conditions that may facilitate maltreatment or torture in these agencies.

The NPM may carry out inspections in:
  • Penitentiary centres and Prisons
  • National Police Stations
  • Barracks of the Civil Guard
  • Autonomous communities police stations
  • Military Facilities, including barracks, naval bases, air force bases, military bases, military training centres, hospitals, etc.
  • Municipal detention centres
  • Judicial detention centres
  • Juvenile detention centres
  • Detention centres for foreign nationals
  • Border control centres with police facilities in airports, sea ports and territorial borders
  • Hospitals (with custody units)
  • Psychiatric hospitals
  • Geriatric centres
  • Holding facilities for stowaways
  • Transports of State Security Forces for the transfer of detainees
  • Any other place that may qualify under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol

In the exercise of its preventative function, the Defensor del Pueblo, through the National Mechanism for the Prevention of Torture, may gather from the Spanish authorities any and all documents and reports it deems necessary and these authorities must provide all the assistance that the NPM requires.

The preventative activities of the National Preventative Mechanism consist, essentially, in:

  • Carrying out regular, unannounced, inspections to places of involuntary deprivation of liberty in accordance with the established provisions of Articles 1 and 19 a) of the Optional Protocol.
  • Creating inspection records and reports in accordance with the provisions established in Article 23 of the Optional Protocol.
  • Issuing recommendations to authorities in accordance with the provisions established in Article 19 b) of the Optional Protocol.
  • Making proposals and observations concerning existing and draft legislation, in accordance with the provisions established in Article 19 c) of the Optional Protocol.

The NPM annually reports on its activity in a report before the Congress and before the United Nations Subcommittee for the Prevention of Torture, based in Geneva.

The NPM is an independent unit within the structure of the Defensor del Pueblo, whose office, with the objective of maintaining its independence, is incompatible with any representative mandate; with any political office or activity; with the duration of active service of any public administration; with any affiliation with a political party or the performance of management functions in a political party, union, association or foundation, and with the employment of the services of the same; with the exercise of judicial and fiscal careers; and with any professional activity, whether labour, liberal, or mercantile. The NPM enjoys the following privileges:

  • He or she is not subject to any imperative mandate, nor does he or she receive instructions from any authority. The NPM exercises its functions with autonomy and according to its own criteria.
  • He or she enjoys immunity in that he or she cannot be arrested, reprimanded, fined, prosecuted or judged as a result of the opinions which he or she expresses or as a result of the actions he or she takes in the realization of the capacities of the office.
  • The Defensor is appointed by the Parliament for a period of five years, and may not leave office except as a result of resignation, the expiration of his or her appointment, death, disability, by acting in gross negligence in fulfilling the obligations and duties of the office, or if her or she has been found guilty by final judgment of a felony.

The National Mechanism for the Prevention of Torture was established as an independent unit within the structure of the Defensor del Pueblo. The National Preventative Mechanism Unit is composed of a head of the unit, five technicians and two full time administrators. Two other coordinators work both as members of the NPM Unit as well as for the Defensor del Pueblo. The NPM unit also occasionally receives support from technicians from the Institution that are integrated in other areas related to these matters, particularly in carrying out visits.

Moreover, in order to fulfil the functions and expectations that international organizations expect from the NPM, the Defensor de Pueblo works in collaboration with accredited, experienced and trained professionals in fields such as medicine, psychiatry and psychology. They provide assistance and collaboration as external experts, accompanying members of the NPM Unit on some visits and contributing to a comprehensive, multidisciplinary assessment of the centres and places of detention visited.

The complete design of the NPM provision of Organic Law 1/2009 of November 3rd also involved the creation of an Advisory Council as a body of technical and legal cooperation in the exercise of the functions of the National Preventative Mechanism.

The complete text of the reform of the Rules of Organization of the Defensor del Pueblo, which determines the structure, composition and function of the Advisory Council, can be consulted here.

According to it, the Council is composed  of the Defensora del Pueblo, the two Deputies of the Defensor del Pueblo and a maximum of 10 members: one designated by the General Council of Spanish Lawyers, a second designated by the General Council of Spanish Medical Associations, a third designated by the General Council of Official Colleges of Psychologists of Spain, up to two representatives from institutions with whom the Defensor del Pueblo has signed contracts of collaboration, and five members to be appointed from a pool of candidates nominated by the Defensor, in their personal capacity or on behalf of organizations or associations, to represent civil society. The current composition of the Advisory Council, chaired by the Defensora del Pueblo, Mrs Soledad Becerril,  is as follows:

- Mr Francisco Fernández Marugan, First Deputy of the Defensor del Pueblo.

- Mrs. Concepció Ferrer i Casals, Second Deputy of the Defensor del Pueblo.

  - Mrs Milagros Fuentes González, Lawyer  and Dean of the Bar Association of Santa Cruz de La Palma. Designed by the Consejo General de la Abogacía Española (Council of Spanish Lawyers).

- Mrs Berta M.ª Uriel Latorre, physician and  Vice President of the Official College of Physicians in Ourense. Designated by the Consejo General de Colegios Oficiales de Médicos de España (General Council of Official Colleges of Spanish Physicians).

 - Mrs Vicenta Esteve Biot, clinical psychologist  and Vice President of the Official College of Psychologists in  Comunitat Valenciana. Designated by the Consejo General de Colegios Oficiales de Psicólogos de España (General Council of Official Collegse of Spanish Psychologists).

 - Mr Emilio Ginés Santidrian,  member to the UN Subcommittee on Prevention of Torture (SPT).

 -Mr Julián Carlos Ríos, Lawyer, penitentiary law specialist and Criminal Law college lecturer.

 - Mr Jesús López Medel Báscones, state lawyer and college lecturer.

 - Mr Lorenzo Martín-Retortillo Baquer, Professor of Administrative Law  and specialist  in jurisprudence of the European Court of Human Rights

Through the Advisory Council, this Institution seeks to create a permanent channel of dialogue between civil society and accredited specialists on the issues of particular interest to the Spanish NPM, in order to enrich the perspectives of the specialists with whom the NPM must work. The members may accompany the visiting teams in the carrying out of their activities.

The NPM always carries out its preventative activities ex officio, since different areas of the Defensor del Pueblo already exist to investigate and address complaints or allegations related to ill-treatment or torture. Thus, any information concerning individual cases or complaints addressed to the NPM are immediately transferred to appropriate areas of the Defensor del Pueblo for study