OPCAT: Jurisdictional & pragmatic issues concerning monitoring of joint removalsAssociation for the Prevention of Torture Association pour la prvention de la torture Asociacin para la prevencin de la tortura

Tanya NortonDetention Monitoring

OPCAT provides the mandate to NPMs to conduct monitoring of deportation flights

National laws do not provide explicit authority for NPMs to monitor forced deportation flights (such as UK, Spain, Albania, Armenia, Poland, Germany). Some even limit the scope to the territory of the State (France).

Recourse to the OPCAT..

OPCAT OPCAT Art.4s references to places was intended to be very broad, incl. situations at risk (deportation) to provide the widest possible protection for persons deprived of liberty.

Art.4: persons must be under a States jurisdiction and control.

Territorial jurisdiction UNCAT Art.2 includes not only the land and territory of the State but also ships flying its flag and aircraft registered in the State.

OPCAT Extraterritorial scopeUNCAT Art. 2Each State Party shall take effective [] measures to prevent acts of torture in any territory under its jurisdiction.

OPCAT

Effective control English/French version (and/or) OPCAT > ships flying the States flag & aircraft registered in State

De facto control CAT & ICCPR > aircraft not registered but State retain custody of detainees on board > States should seek to use registered aircrafts

Partial control CAT in GC No.2 that even partial control will be sufficient to engage a States obligation under Art.2 UNCAT.

OPCAT Extraterritorial scopeOPCAT article 4(1)to any place under its jurisdiction and/or control where persons are or may be deprived of their liberty

It remains clear that the State Party retains at least partial effective control where they have custody over detainees and therefore the OPCAT still applies to require States to allow NPMs to conduct monitoring in circumstances where multiple states exercise control such as FRONTEX flights. NPMS HAVE THE RIGHT OF ACCESS OF JOINT FLIGHTS & INDIVIDUALS

FRONTEX flights & legal status?

One EU MS or Schengen Associated Countries takes the initiative to organise a joint flight and charters a plane for that purpose (see Frontex procedure)

Aircraft registered in that State and all other State(s) retain custody of detainees from that State on board

Aircraft registered in # State but the Organising State retains de facto control and all other State(s) retain custody of detainees from that State on board

Pragmatic solutions for monitoring?

The lead country (together with FRONTEX ) is responsible for organising a monitor (EC sponsored Matrix study)

Frontex Monitoring Agent # NPMs, why? FRONTEX has its own guidelines (incl. instructions or guidelines of each Operational Plan) and code of conduct. NPMs cannot monitor on behalf of FRONTEX, independence at stake.

Other factors which determine independence incl. regularity/frequency of monitoring; choice of returns it monitors; sufficient funding & capacity.

OPCAT mandate is much broader than EU policy monitoring return flights should not be done at the cost of the rest. NPMs already have a huge tasks and have to make strategic decisions.

Coordination meeting of NPMs to occasionally monitor joint return flights (focal point could be the organising State, pragmatic and informal)

Pan European Flights: Pool of special monitors (Matrix study) > Frontex Monitoring Agent

Independent regional body: Committee on the Prevention of Torture (CPT)

Thank you

Summary conclusions OPCAT provides the mandate to NPMs to conduct monitoring of deportation flights

OPCAT Private GuardsArticle 4(2) deprivation of liberty means any form of detention or imprisonment or placement of a person in a public or private custodial setting which that person is not permitted to leave at will.

Thank CoE, EU/FRONTEX and the organisers. As many already know, The Association for the Prevention of Torture (APT) is an international NGO based in Geneva, and was the organisation behind the drafting and adoption of the OPCAT, and has since worked to provide advice and support on the implementation of the OPCAT and in particular on the functioning of National Preventive Mechanisms.

The discussions have been very enriching until now and covered many issues already. The idea of this discussion is to build on issues raised in the 8th NPM thematic workshop on monitoring enforced removals held in March in Geneva.

Due to the special risks associated with forced deportation, the APT had prepared a briefing paper to be used by NPMs on monitoring forced deportation flights - We have called for independent monitoring bodies to oversee the entire process, from the host State to the destination State, so as to facilitate a greater level of transparency and accountability with regard to conditions for, and treatment of, detainees.

Here we will summarises/remind ourselves of the main conclusions from our last presentation which examined how the OPCAT provides the mandate to NPMs to conduct monitoring of deportation flights including joint returns by air such as FRONTEX Flights and share some ideas and thoughts on possible pragmatic solutions and ways forward

**APT presentation in Geneva quickly analysed the OPCAT framework, to better understand how NPMs already have the mandate to monitor deportation flights, and answer related questions of extraterritorial application and the use of private guards.

But perhaps we should first establish why we are discussing OPCAT at all. NPMs are national bodies which draw primary authority from national laws. Yet from just a cursory look at NPM laws and other models of authorisation in UK, France, Spain, Albania, Armenia, Poland, Germany, among others, it is clear that national laws do not provide explicit authority for NPMs to monitor forced deportation flights. As we heard, some even limit the scope of monitoring to the territory of the State Party.

In fact, many of the laws APT examined provide very little help in this regard at all, many simply authorising NPMs to conduct visits to all places where persons are deprived of their liberty. It is therefore entirely appropriate to have recourse to the OPCAT, as the international text which either takes direct effect in domestic law, or can otherwise be used to interprete such broad national authority.

Bound by the EU Returns Directives = 27 EU States and the 4 Schengeb Associated States (Switzerland, Iceland, Norway and Lichtenstein)

One of the key Articles 4(1) in the OPCAT, provides that State Parties shall allow visits to any place under its jurisdiction and control where persons are or may be deprived of their liberty. Art.20 complements the earlier provision, providing specific mandate for NPMs to conduct monitoring visits.What is a place? A portion of space; a geographic point, a space or room?

The OPCAT does not provide a list of places of detention, but certain places of detention necessarily fall within its application, including police stations, prisons, remand facilities, detention centres, immigration detention, mental health centres and care homes, places of administrative detention, closed drug rehabilitation centres, childrens homes, etc. (APT, OPCAT Implementation Manual, p.50).

Clearly it would defeat the very object and purpose of the OPCAT and CAT, if its provisions covered physical structures of detention, but failed to cover actions between or outside such locations.Art.4s reference to places was intended to be very broad in order to provide the widest possible protection for persons deprived of their liberty.

The key elements of deprivation of liberty are that those detained are unable to leave by his or her own free will, and that the detaining power has some link, direct or indirect, to the state. (4(2)) Article 4(2) deprivation of liberty means any form of detention or imprisonment or placement of a person in a public or private custodial setting which that person is not permitted to leave at will...

Though deportation describes a process, rather than a place, the detainee is either in physical custody or otherwise unable to leave and under the control of a state agent for the entire process, until he or she is handed over to a destination state. It is therefore clearly a situation where the detainee remains deprived of his liberty in a place. It is of no consequence that the place of detention is not a fixed structure. Aircraft, ships, and any other means of transport are also places capable of giving rise to state obligations.

The other requirement under Art.4 is that persons must be under a States jurisdiction and control. This wording requires some further analysis. Could a States jurisdiction and control extend extraterritorially?

Territorial jurisdiction = In trying to understand what is intended scope of the wording jurisdiction and control, we might first look at OPCATs parent treaty, the UNCAT. In the preparation for the key UNCAT Art.2 provision requiring States to undertake measures to prevent torture, Nowak and McArthur emphasise that the wording was carefully drafted to include not only the land and territory of the State, but also ships flying its flag and aircraft registered in the State. UNCAT Art.16, provides for identical wording in relation to other acts of cruel, inhuman or degrading treatment or punishment. Significantly, the Committee Against Torture has also commented that a States territory includes ships and aircrafts registered to the State Party and structures resting on the continental shelf of the relevant State Party [The extraterritorial scope of Art.4 of OPCAT is analysed in detail in APT Legal Briefing, Application of OPCAT to a State Partys Places of Military Detention Located Overseas, October 2009.]But what about an aircraft which is not registered in the state?

As noted by Nowak and McArthur (UNCAT, A Commentary, p.308), territorial jurisdiction acts as the general rule in international law, extraterritorial jurisdiction, therefore, is the exception.

In trying to understand what is intended scope of the wording jurisdiction and control, we might first look at OPCATs parent treaty, the UNCAT. In the preparation for the key UNCAT Art.2 provision requiring States to undertake measures to prevent torture, Nowak and McArthur emphasise that the wording was carefully drafted to include not only the land and territory of the State, but also ships flying its flag and aircraft registered in the State. UNCAT Art.16, provides for identical wording in relation to other acts of cruel, inhuman or degrading treatment or punishment.

Significantly, the Committee Against Torture has also commented that a States territory includes ships and aircrafts registered to the State Party and structures resting on the continental shelf of the relevant State Party [The extraterritorial scope of Art.4 of OPCAT is analysed in detail in APT Legal Briefing, Application of OPCAT to a State Partys Places of Military Detention Located Overseas, October 2009.]

[This is consistent with UN Law of the Sea and international air law (See, for instance, the Chicago Convention on Civil and State Aircraft and the 1963 Tokyo Convention on offences committed on board civil aircraft). Note that there is some disagreement over the classification of an aircraft used for state purposes, which would fall outside the scope of civil regulation. Nevertheless, either the aircraft is civil and therefore international air regulation applies, or it is a state aircraft, it falls outside regulatory conventions, but it is still within the territory of the State. See M. Milde, Rendition Flights and International Air Law, REDRESS, 2008, for discussion.]

OPCAT draws authority and direction from these two provisions. The OPCAT obligation to allow visits to any place under its jurisdiction and control (Art.4) is therefore to be interpreted in a way which provides no less scope than that given to this provision of the UNCAT. Thus NPMs may also conduct extraterritorial visits in locations where the state retains jurisdiction and control, such as a civil aircraft registered in the state.

[An aircraft registration is a unique alphanumeric string that identifies a civil aircraft, in similar fashion to a licence plate on an automobile. In accordance with the Convention on International Civil Aviation all aircraft must be registered with a national aviation authority. A callsign agreement reached in 1913 stipulated that the nationality marks were to be followed by a hyphen then a group of four letters that must include a vowel (and for the convention Y was considered to be a vowel). The marking have been amended and added to over the years and the allocations and standard are managed by the International Civil Aviation Organization (ICAO). Article 20 of the Chicago Convention on International Civil Aviation (signed in 1944) requires that all signatory countries register aircraft over a certain weight with a national aviation authority. Upon registration, the aircraft receives its unique "registration" which must be displayed prominently on the aircraft. Annex 7 to the Convention on International Civil Aviation describes the definitions, location, and measurement of nationality and registration marks. The aircraft registration is made up of a prefix selected from the country's callsign prefix allocated by the International Telecommunication Union (ITU) (making the registration a quick way of determining the country of origin) and the registration suffix. Depending on the country of registration, this suffix is a numeric or alphanumeric code and consists of one to five digits or characters respectively. Note this applies to civil aircraft only.]

But what about an aircraft which is not registered in the state?*Effective control =

Here, we should look closely at the wording of Article 4.

Pursuant to Art.4(1) of the English version of OPCAT, States Parties are required to provide access to places under their jurisdiction and control. However, the French text, which is equally authentic, requires access to places under Parties jurisdiction or control. The provision should therefore be read as requiring access, not only to places of detention within a State Partys territorial boundary or jurisdiction, but also in contexts where it exercises effective control.

It is significant that provisions of the UNCAT and ICCPR are interpreted as having similar effect without having similar wording. Both the CAT and the CCPR have observed that the principle factors of jurisdiction and/or control extend beyond a state border to states where there is effective de facto or de jure control exercised by the State Party. This interpretation has also been repeated in communications by UN Special Procedures, and jurisprudence of the ICJ.As a result, Art.4 OPCAT can accommodate deportation flights, both when an aircraft is registered to the State Party and when any other aircraft is used, as long as the State Party retains effective de facto control. While effective control of the place should be determined on the facts, it should be easily demonstrated in circumstances where state agents retain custody of detainees on board an aircraft.

Partial control = the CAT has stated in General Comment No.2 that even partial control will be sufficient to engage a States obligations under Art.2 UNCAT. This is significant as a civil aircraft (as opposed to military, security, state) will always be subject to multiple jurisdiction as the Captain/pilot exercises ultimate control.

What about if the aircraft is not registered in the State?

Here, we should look closely at the wording of Article 4.

Pursuant to Art.4(1) of the English version of OPCAT, States Parties are required to provide access to places under their jurisdiction and control. However, the French text, which is equally authentic, requires access to places under Parties jurisdiction or control. The provision should therefore be read as requiring access, not only to places of detention within a State Partys territorial boundary or jurisdiction, but also in contexts where it exercises effective control.

It is significant that provisions of the UNCAT and ICCPR are interpreted as having similar effect without having similar wording. Both the CAT and the CCPR have observed that the principle factors of jurisdiction and control extend beyond a state border to states where there is effective de facto or de jure control exercised by the State Party. This interpretation has also been repeated in communications by UN Special Procedures, and jurisprudence of the ICJ.As a result, Art.4 OPCAT can accommodate deportation flights, both when an aircraft is registered to the State Party and when any other aircraft is used, as long as the State Party retains effective de facto control. While effective control should be determined on the facts, it should be easily demonstrated in circumstances where state agents retain custody of detainees on board an aircraft.

[In circumstances where multiple states exercise control (e.g. frontex flights), the CAT has stated in General Comment No.2 that even partial control will be sufficient to engage a States obligations under Art.2 UNCAT. It remains clear that the State Party retains partial effective control where they have custody over detainees and therefore the OPCAT still applies to require States to allow NPMs to conduct monitoring.]

*It remains clear that the State Party retains partial effective control where they have custody over detainees and therefore the OPCAT still applies to require States to allow NPMs to conduct monitoring in circumstances where multiple states exercise control such as FRONTEX flights. NPMS HAVE THE RIGHT OF ACCESS OF JOINT FLIGHTS & INDIVIDUALS

This control may be demonstrated by the presence of guards under the authority of the State Party

FRONTEX main task is to augment and add value to border control activities of MS

FRONTEX Joint Return Operation = Frontex coordinated returns by air group together non EU nationals from several Member States for a flight. Returnees are transported from several Member States to the Member State organising the flight, where they embark and aircraft and travel together to the destination airport in a third country.

FRONTEX acts as an intermediary, coordinating the various national authorities that want to participate in a joint return flight. However Frontex does not have any background information about the individual cases of the returnees.

One EU MS or Schengen Associated Countries > takes the initiative to organise a joint flight and charters a plane for that purpose. The countries of destination are chosen according to needs.

Organising MS informs FRONTEX of planned flight and number of seats available for other participants. FRONTEX dispatches this info to other MS

Organising MS prepares and oversees the flight in line with a best practices manual developed by Frontex and also ensures the presence of medical personnel on board every joint return flight. Each MS is LEGALLY obliged to have a monitoring system in place to ensure compliance with EU Charter on Fundamental Rights. A Frontex project manager always travels on the charter flight to the destination country. His tasks includes making sure that the joint operation is carried out in accordance with the Code of Conduct for return flights created under FRontex

Joint flights are co-financed by FRONTEX incl. travel costs of escorts and returnees, costs of medical personnel, human rights monitors Other sources of financing incl. the European Return Fund

Frontex will not lease a plane that is not registered under an EU StateThe EU Returns Directives obliges MS to establish an effective monitoring system for the monitoring of forced returns (article 8(6))The duty to ensure an effective return directive deriving from article 8(&) also applies to FRONTEX coordinated returns (article 9(1b))

EU Directives: Monitors powers differ (Matrix study) system implemented in Luxemburg (p28) stipulates that the monitor cannot communicate with the deportee during the removal process itselfMonitors in Luxemburg, Poland and Germany do not have access to deportees fileSome monitors (belgium, france, hungary) have intervention powers

Not all monitors are informed in advance of all impending forced return operations (Germany is not always informed p32)

Funding constraints (p33) example of germany who can only monitor 10%

FRONTEX = standard operational procedures for removals regarding restraints>??

Member states of the EU = 27 Members Austria(1995) Belgium(1952) Bulgaria(2007) Cyprus(2004) Czech Republic(2004) Denmark(1973) Estonia(2004) Finland(1995) France(1952) Germany(1952) Greece(1981) Hungary(2004) Ireland(1973) Italy(1952)Latvia(2004) Lithuania(2004) Luxembourg(1952) Malta(2004) Netherlands(1952) Poland(2004) Portugal(1986) Romania(2007) Slovakia(2004) Slovenia(2004) Spain(1986) Sweden(1995) United Kingdom(1973)

Candidate countries= Croatia Former Yugoslav Republic of Macedonia Iceland Montenegro Serbia Turkey Other European countries Albania Andorra Armenia Azerbaijan Belarus Bosnia and Herzegovina Georgia Liechtenstein Moldova Monaco Norway Russia San Marino Switzerland Ukraine Vatican City State

(Non EU States = 12 (Bosnia, Macedonia, Georgia, Montenegro, Serbia, Ukraine, Turkey, Moldova, Armenia, Azerbaijan, Albania, Switzerland))

Schengen countries = 26 Austria Belgium , Czech Republic Denmark Estonia Finland France Germany Greece Hungary Iceland Italy Latvia Lithuania Luxembourg Malta Netherlands Norway Poland Portugal Slovakia Slovenia Spain SwedenSwitzerlandNPMs should reserve its rights to carry out random checks in any kind of institution or situation of risk where a person is deprived of his libertyThe NCPT monitored a first flight not with the Return Directive in mind but with their conferred role according to Article 2 of the Federal Law on the Commission for the Prevention of Torture based on which the NCPT has the authority to examine the situation of a person who is deprived of liberty

Occasional monitoring of joint flights: can be useful to highlighting key issues (such as excessive use of force) and gaps / lack of safeguards*Finally, we should say a few words on the use of Private Guards, as several States outsource detention and transportation of detainees to private companies.

Art.4(1) OPCAT requires that access be given to all places where persons are deprived of liberty either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence. This wording is identical to that used in Art.1 CAT to prevent State authorities escaping the reach of its provisions. OPCAT is therefore not limited to state custody settings.

This interpretation is reinforced in Art.4(2) OPCAT which adds that private custody arrangements are explicitly included within the mandate of monitoring bodies, provided that there remains some state involvement.

*