OPCAT: Jurisdictional & pragmatic issues concerning monitoring of joint removals

Association for the Prevention of Torture Association pour la prévention de la torture Asociación para la prevención 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.4’s 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 State’s ‘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 ships flying its flag and aircraft registered in the State. registered in the State.

OPCAT – Extraterritorial scopeUNCAT Art. 2

Each 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 > ships flying the States flag & aircraft registered in Stateregistered in State

De facto control – CAT & ICCPR > aircraft > aircraft notnot registered but State retain custody registered but State retain custody of detainees on board of detainees on board > States should seek to use registered aircrafts > States should seek to use registered aircrafts

Partial control – CAT in GC No.2 that even partial control will be sufficient to engage a State’s 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 multiple states exercise control such as FRONTEX exercise control such as FRONTEX flights.flights. NPMS HAVE THE RIGHT OF NPMS HAVE THE RIGHT OF ACCESS OF JOINT FLIGHTS & ACCESS OF JOINT FLIGHTS & INDIVIDUALS 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 purposecharters a plane for that purpose (see (see Frontex procedure) 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 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

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

OPCAT – Private Guards

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.”