Since July 1st 2012 the Austrian Ombudsman Board with its six regional visiting commissions has acted as Austria’s National Prevention Mechanism (NPM) on the implementation of the Optional Protocol of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Since then the NPM has visited and monitored several sites of deprivation of liberty legitimised by the state. The project “Bringing Home Human Rights Standards: The Role of the National Preventive Mechanisms” should clarify central questions related to the instalment and present activities of the NPM.
In the first step, the research investigated the interaction between international, regional and national monitoring bodies on the prevention of torture, as well as their similarities and particularities in mandate and practice. For this purpose, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), the Committee for the Prevention of Torture (CPT), as well as the NPMs in Germany, France, Austria and Slovenia were analysed. In this context, particularly their legal foundations, mandate and compositions were investigated to identify not only similarities, but also differences and particularities of these committees. In addition, their formal and informal relationships between one another were examined.
In the second step, the research was to be deepened based on the question of human rights standards implemented by the Austrian NPM. For this, it was examined which standards the NPM makes use of in practice in the different work steps of the preventive monitoring. In this context also the question of which role the CPT standards for prevention measures take on the national level was addressed. Finally, it was evaluated to which degree the NPM can render international standards relevant on the national level, and which functions these standards have in practice.
In the first part of the project it could be shown that the investigated monitoring bodies do carry out comparable tasks, however their particular potential lies in different areas: OPCAT employs an international perspective which is very important for the supportive work with NPMs. The CPT develops highly-esteemed standards for the prevention of torture and inhuman or degrading treatment on the regional level. Successfully established NPMs on the other hand are in the position to more intensively and steadily carry out on-site-monitoring in the respective countries than international or regional committees. Although the three levels are not fully coordinated strategically, their respective contributions are complimentary and collectively contribute to an improvement of the system on the prevention of torture, inhuman and degrading treatment.
In the second part of the project it could be shown that international standards on the prevention of torture and inhuman treatment are an important backbone for the monitoring visits, as well as the consequential results and settlement recommendations of the Austrian NPM. In relation to the legal quality of these standards it can be established that these are partly of a legally binding nature, yet mostly not legally binding. In the practical application, differentiation according to international, regional or national origin or liability of the standards does not make a considerable difference.
The NPM renders international standards concrete in the light of the current Austrian legal landscape, as well as in the context of the found situation. Insofar the NPM is a link between international standards and (partly also legally binding) national measures to improving preventative human rights protection for people in holding legitimised by the state. However, the NPM is also legitimised and therefore required to develop its own standards. Therefore, the NPM is also a designer of standards on the prevention of human rights violation on the national level. Without a doubt it can also thereby determine standards that exceed the international minimum standards and also, in the course of the visited institutions, demand them.
The NPM can give international standards relevant in different ways on the national level: international standards can become legally binding in national law, be drawn upon as an interpretation aid for the national rule of law, develop factual impact on the visited institutions, as well as become internally binding for the NPM.
In practice the preventative standards fulfil two central functions. On the one hand, they serve as material point of reference for the NPM in order to assess the found social realities and to then propose preventive measures. Insofar standards are an important human rights based instrument to assess risks, and to minimise those risks. On the other hand, these standards serve the NPM as legitimation for recommendations and suggestions on the prevention of human rights violations in relation to the visited institutions and top authorities.
Veronika Apostolovski, Renate Kicker, Markus Möstl, Maddalena Vivona, Bringing Home Human Rights Standards: The Role of National Preventive Mechanisms. Research Paper 1
Markus Möstl, Siniša Pejić, Veronika Apostolovski, Maddalena Vivona, Renate Kicker, Bringing Home Human Rights Standards: The Role of National Preventive Mechanisms. Research Paper 2
Veronika Apostolovski, Renate Kicker, Markus Möstl, Maddalena Vivona, The preventive monitoring of places where persons are deprived of their liberty: the more, the merrier? (upcoming).
Markus Möstl, Die Anwendung präventiver Standards zum Schutz und zur Förderung der Menschenrechte: Die Praxis des Nationalen Präventionsmechanismus Österreichs (upcoming).
1 October 2014 - 30 June 2017
The project is supported by means of the Anniversary fund of the Oesterreichische Nationalbank (project number: 16041)