The UN Subcommittee on Prevention of Torture (SPT) has issued an opinion on cross-border monitoring

At its plenary meeting in Geneva in February 2015, the UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) adopted an opinion on cross-border monitoring as guidance for the Norwegian NPM. The opinion concerns how to frame preventive work when one state enters into an agreement with another state with a view to sending inmates to the other state to serve their sentence there.

Under the Optional Protocol to the Convention against Torture (OPCAT), the SPT has an advisory role in relation to the state parties’ national preventive bodies. The Parliamentary Ombudsman’s National Preventive Mechanism against Torture and Ill-Treatment (NPM) therefore contacted SPT with a request for guidance in connection with the Ministry of Justice and Public Security’s consultation on amendments to the Execution of Sentences Act to facilitate the service of a sentence in a different state.

Minister of Justice and Public Security Anders Anundsen signed an agreement on 2 March 2015 with the Dutch authorities to lease prison spaces in the Netherlands.

According to the Ministry, the agreement between Norway and the Netherlands on the lease of detention spaces must be presented to the Storting (the Norwegian parliament) for approval before entering into force. The agreement is also to be presented to the Dutch parliament before the summer. According to the Ministry, the first transfer of Norwegian prisoners to the Dutch prison Norgerhaven is planned for 1 September 2015.

The Ombudsman has submitted a consultative statement in the matter.The consultative statement can be found here (in Norwegian only).

In its statement, the Ombudsman referred, among other things, to the SPT’s advice on preventive work across national borders:

SPT opinion on cross-border monitoring

1. Should a State party to the OPCAT (a sending State) enter into an arrangement under which those detained by that State are to be held in facilities located in a third State (a receiving State), the SPT considers that the sending State should ensure that such an agreement provides for its National Preventive Mechanism having the legal, and practical, capacity to visit those detainees in accordance with the provisions of the OPCAT and the SPTs Guidelines on NPMs.

2. After undertaking such visits, the NPM of the sending State should be able to present its recommendations and enter into a preventive dialogue with the authorities of both the sending and receiving State. The agreement entered into between the sending and receiving states should provide for this and permit the variation of its terms in the light of the recommendations made.

3. In addition to the above, the NPM of the receiving state will also have the capacity to visit those in detention on the basis of such agreements, as a natural consequence of its general right to visit all those deprived of their liberty on the basis of public authority and under the jurisdiction and control of the State Party.

4. After undertaking such visits, the NPM of the receiving State should be able to present its recommendations and enter into a preventive dialogue with the authorities of both the receiving and sending State. The agreement entered into between the receiving and sending States should provide for this and permit the variation of its terms in the light of the recommendations made.

5. The NPMs of the sending and receiving State should liaise regarding the conduct of such visits, and should consider undertaking joint visits in such circumstances and, where possible, to make joint recommendations.

6. The recommendations made ought to reflect the established approaches of the NPMs in question, which themselves will reflect the approach of the SPT as well as of other international standards. In cases where there is a difference of approach and expectation, the higher expectations will be applicable to those detained on the basis of such agreements as a reflection of the overarching principles of prevention.