Advanced Search

Decree No. 2008 - 1322 Of December 15, 2008 On The Publication Of The Optional Protocol Related To The Convention Against Torture And Other Punishment Or Inhuman Or Degrading Treatment, Adopted On 18 December 2002 In New York

Original Language Title: Décret n° 2008-1322 du 15 décembre 2008 portant publication du protocole facultatif se rapportant à la convention contre la torture et autres peines ou traitements inhumains ou dégradants, adopté le 18 décembre 2002 à New York

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
Learn more about this text...

Information on this text

Summary

Application of art. 52 to 55 of the Constitution.

Keywords

BUSINESS AND EUROPEAN , INTERNATIONAL AGREEMENT , PROTOCOL , CONVENTION , TORTURE , PEINE , INHUMAIN TRAITEMENT , FACULTATIVE PROTOCOL , APPROVAL , AUTHORIZATION


JORF n°0293 of 17 December 2008 page 19224
text No. 11



Decree No. 2008-1322 of 15 December 2008 on the publication of the Optional Protocol to the Convention against Torture and Other Inhuman or Degrading Treatment or Punishment, adopted on 18 December 2002 in New York (1)

NOR: MAEJ0828266D ELI: http://www.legifrance.gouv.fr/eli/decret/2008/12/15/MAEJ0828266D/jo/texte
Alias: http://www.legifrance.gouv.fr/eli/decret/2008/12/15/2008-1322/jo/texte


President of the Republic,
On the report of the Prime Minister and the Minister for Foreign and European Affairs,
Seen them Articles 52 to 55 of the Constitution ;
Vu la Act No. 2008-739 of 28 July 2008 authorizing the approval of the Optional Protocol to the Convention against Torture and Other Inhuman or Degrading Treatment or Punishment adopted on 18 December 2002 in New York;
Vu le Decree No. 53-192 of 14 March 1953 amended on the ratification and publication of international commitments undertaken by France;
Vu le Decree No. 87-916 of 9 November 1987 Publication of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in New York on 10 December 1984,
Decrete:

Article 1


The Optional Protocol to the Convention against Torture and Other Inhuman or Degrading Treatment or Punishment, adopted on 18 December 2002 in New York, will be published in the Official Gazette of the French Republic.

Article 2


The Prime Minister and the Minister for Foreign and European Affairs are responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.

  • Annex



    P R O T O C O L E


    OPTIONAL OPTIONAL TO THE CONVENTION AGAINST TORTURE AND OTHER MEASURES OR DEGRADING


    Preamble


    States Parties to this Protocol,
    Reaffirming that torture and other cruel, inhuman or degrading treatment or punishment are prohibited and constitute grave violations of human rights,
    Convinced that other measures are necessary to achieve the objectives of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Convention) and to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment,
    Recalling articles 2 and 16 of the Convention, which oblige any State Party to take effective measures to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment from being committed in any territory under its jurisdiction,
    Recognizing the primary responsibility of States to implement these articles, that strengthening the protection of persons deprived of their liberty and full respect for their human rights is a shared responsibility shared by all, and that the international bodies responsible for ensuring the implementation of these principles complement and strengthen the measures taken at the national level,
    Recalling that the effective prevention of torture and other cruel, inhuman or degrading treatment or punishment requires an education programme and a variety of measures, legislative, administrative, judicial and other,
    Recalling also that the World Conference on Human Rights strongly stated that efforts to eliminate torture should, above all, be focused on prevention and called for the adoption of an optional protocol to the Convention to establish a preventive system for regular visits to places of detention,
    Convinced that the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment may be strengthened by preventive non-judicial means based on regular visits to places of detention,
    agreed that:


    Part I
    General principles
    Article 1


    The purpose of this Protocol is to establish a system of regular visits by independent international and national bodies to places where persons deprived of their liberty are located, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.


    Article 2


    1. It is a subcommittee on the prevention of torture and other cruel, inhuman or degrading treatment or punishment of the Committee against Torture (hereinafter referred to as the Subcommittee on Prevention), which has the functions defined in this Protocol.
    2. The Subcommittee on Prevention conducts its work within the framework of the Charter of the United Nations and draws on the purposes and principles set out therein, as well as the norms of the United Nations regarding the treatment of persons deprived of their liberty.
    3. The subcommittee of prevention is also inspired by the principles of confidentiality, impartiality, non-selectivity, universality and objectivity.
    4. The Subcommittee on Prevention and the States Parties shall cooperate in the implementation of this Protocol.


    Article 3


    Each State Party shall establish, designate or administer, at the national level, one or more visiting bodies to prevent torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as the national preventive mechanism).


    Article 4


    1. Each State Party shall authorize the mechanisms referred to in Articles 2 and 3 to conduct visits, in accordance with this Protocol, in any place under its jurisdiction or under its control where persons deprived of their liberty are or may be found on the order of a public authority or its instigation, or with its express or tacit consent (hereinafter referred to as a place of detention). These visits are carried out to strengthen, where appropriate, the protection of such persons from torture and other cruel, inhuman or degrading treatment or punishment.
    2. For the purposes of this Protocol, deprivation of liberty means any form of detention or imprisonment, or placement of a person in a public or private institution of supervision of which he or she is not authorized to leave at his or her discretion, ordered by a judicial or administrative authority or any other public authority.


    Part II
    Subcommittee on Prevention
    Article 5


    1. The prevention subcommittee consists of ten members. When the number of ratifications or accessions to this Protocol has reached fifty, the number of members of the Subcommittee on Prevention will be increased to twenty-five.
    2. Members of the Subcommittee on Prevention are selected from high morality personalities with a recognized professional experience in the field of the administration of justice, particularly in the areas of criminal law and prison or police administration, or in the various areas related to the treatment of persons deprived of their liberty.
    3. In the composition of the Subcommittee on Prevention, due consideration is given to the need to ensure equitable geographical distribution and the representation of the various forms of civilization and legal systems of the States Parties.
    4. In the composition of the subcommittee of prevention, it is also taken into account the need to ensure a respectful representation of gender balance, based on the principles of equality and non-discrimination.
    5. The subcommittee of prevention cannot include more than one national of the same State.
    6. The members of the Subcommittee on Prevention shall serve individually, act independently and impartially and shall be available to carry out their functions effectively within the Subcommittee on Prevention.


    Article 6


    1. Each State Party may designate, in accordance with paragraph 2 below, not more than two candidates, having the qualifications and meeting the requirements set out in Article 5, and shall therefore provide detailed information on the qualifications of the candidates.
    2. (a) Designated candidates shall have the nationality of a State Party to this Protocol;
    (b) At least one of the two candidates must have the nationality of the State Party author of the designation;
    (c) It may not be designated as candidates for more than two nationals of the same State Party;
    (d) Any State Party shall, before appointing a candidate from another State Party, request and obtain the consent of that State Party.
    3. At least five months before the date of the meeting of the States Parties during which the election will take place, the Secretary-General of the United Nations sends a letter to the States Parties inviting them to submit their candidates within three months. The Secretary-General shall prepare the alphabetical list of all candidates so nominated, with the indication of the States Parties that have nominated them.


    Article 7


    1. Members of the Subcommittee on Prevention shall be elected according to the following procedure:
    (a) The primary consideration shall be given to the requirements and criteria set out in Article 5 of this Protocol;
    (b) The first election shall be held no later than six months after the date of entry into force of this Protocol;
    (c) Members of the Subcommittee on Prevention shall be elected by States Parties by secret ballot;
    (d) Members of the Subcommittee on Prevention shall be elected at biennial meetings of States Parties, convened by the Secretary-General of the United Nations. At these meetings, where the quorum is constituted by two thirds of the States Parties, are elected members of the Subcommittee on Prevention of candidates obtaining the largest number of votes and the absolute majority of the votes of the representatives of the States Parties present and voting.
    2. If, in the course of the election, it turns out that two nationals of a State Party are eligible to be elected members of the Subcommittee on Prevention, it is the candidate who obtains the largest number of votes elected. If both candidates obtain the same number of votes, the procedure is as follows:
    (a) If only one of the candidates was nominated by the State Party of which he is a national, he is elected a member of the Subcommittee on Prevention;
    (b) If the two candidates were nominated by the State Party of which they are nationals, a separate vote by secret ballot shall be held to determine who is elected;
    (c) If neither of the two candidates was nominated by the State Party of which it is a national, a separate vote by secret ballot shall be held to determine who is elected.


    Article 8


    If a member of the Subcommittee on Prevention dies, dismisses his or her functions or is no longer in a position for any other reason to discharge his or her powers to the Subcommittee on Prevention, the State Party that has designated him proposes, taking into account the need to ensure an adequate balance between the various areas of competence, another candidate with the qualifications and meeting the requirements set out in Article 5, which shall sit until the majority This approval shall be deemed to have been granted unless half of the States Parties or more give an unfavourable opinion within six weeks of the time when they have been informed by the Secretary-General of the United Nations of the proposed appointment.


    Article 9


    The members of the Subcommittee on Prevention are elected for four years. They are eligible for re-election once they are re-submitted. The term of half of the members elected at the first election shall end after two years, immediately after the first election, the name of the members shall be drawn by lot by the President of the meeting referred to in paragraph 1 (d) of Article 7.


    Article 10


    1. The prevention subcommittee elects its office for a period of two years. Members of the office are eligible for re-election.
    2. The Subcommittee on Prevention establishes its rules of procedure, which shall include, inter alia:
    (a) The quorum is half of the members plus one;
    (b) The decisions of the Subcommittee on Prevention shall be taken by a majority of the members present;
    (c) The Subcommittee on Prevention meets in private.
    3. The Secretary General of the United Nations convenes the first meeting of the Subcommittee on Prevention. After its first meeting, the Subcommittee on Prevention meets on any occasion provided for by its rules of procedure. The sessions of the Subcommittee on Prevention and the Committee against Torture are held simultaneously at least once a year.


    Part three
    Mandate of the Subcommittee on Prevention
    Article 11


    The Subcommittee on Prevention:
    (a) Conducts the visits referred to in Article 4 and makes recommendations for States Parties concerning the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment;
    (b) With regard to national preventive mechanisms:
    (i) Provides advice and assistance to States Parties, where appropriate, for the establishment of such mechanisms;
    (ii) To maintain direct, confidential contacts with these mechanisms, where appropriate, and to provide them with training and technical assistance to strengthen their capacities;
    (iii) They offer advice and assistance to assess the needs and means necessary to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment;
    (iv) Preparation of recommendations and observations for States Parties to strengthen the capacity and mandate of national mechanisms for the prevention of torture and other cruel, inhuman or degrading treatment or punishment;
    (c) Cooperate, with a view to preventing torture, with the relevant organs and mechanisms of the United Nations, as well as with international, regional and national organizations or bodies working to strengthen the protection of all persons from torture and other cruel, inhuman or degrading treatment or punishment.


    Article 12


    In order for the subcommittee of prevention to carry out the mandate set out in Article 11, the States Parties shall:
    (a) Receive the subcommittee of prevention in their territory and provide access to places of detention referred to in Article 4 of this Protocol;
    (b) To communicate to the Subcommittee on Prevention all relevant information it may request to assess the needs and measures to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment;
    (c) To encourage and facilitate contacts between the Subcommittee on Prevention and national preventive mechanisms;
    (d) To review the recommendations of the Subcommittee on Prevention and to engage in dialogue with it on possible measures to implement them.


    Article 13


    1. The Subcommittee on Prevention shall, first by drawing of lots, establish a programme of regular visits to States Parties with a view to fulfilling its mandate as defined in Article 11.
    2. After consultations, the Subcommittee on Prevention shall communicate its programme to the States Parties so that they may, without delay, make the necessary practical arrangements for the visits to take place.
    3. The visits are conducted by at least two members of the Subcommittee on Prevention. They may be accompanied, if necessary, by experts with recognized professional experience and knowledge in the areas covered by this Protocol, who are selected from a list of experts based on the proposals of States Parties, the Office of the United Nations High Commissioner for Human Rights and the United Nations Centre for International Crime Prevention. To prepare the list of experts, interested States Parties propose the names of not more than five national experts. The State Party concerned may object to the inscription on the list of a specified expert, following which the subcommittee of prevention proposes the name of another expert.
    4. The subcommittee of prevention may, if it deems appropriate, propose a brief visit to follow a regular visit.


    Article 14


    1. To enable the Subcommittee on Prevention to carry out its mandate, the States Parties to this Protocol undertake to grant it:
    (a) Unrestricted access to all information concerning the number of persons deprived of their liberty in the places of detention referred to in Article 4, as well as the number of places of detention and their location;
    (b) Unrestricted access to all information relating to the treatment of such persons and their conditions of detention;
    (c) Subject to paragraph 2 below, unrestricted access to all places of detention and their facilities and equipment;
    (d) The possibility to speak in private with persons deprived of their liberty, without witnesses, either directly or through an interpreter if it appears necessary, as well as with any other person whose subcommittee of prevention believes that it could provide relevant information;
    (e) The freedom to choose the places he will visit and the people he will meet.
    2. No objection may be made to the visit of a designated place of detention only for urgent and compelling reasons related to national defence, public security, natural disasters or serious disturbances where the visit is to take place, which prevent the visit from taking place on an interim basis. A State Party shall not invoke a state of emergency to object to a visit.


    Article 15


    No public authority or public servant shall order, apply, authorize or tolerate any penalty against a person or organization that has provided information, true or false, to the subcommittee of prevention or to its members, and the person or organization shall not be prejudiced in any other manner.


    Article 16


    1. The Subcommittee on Prevention shall communicate its recommendations and observations in confidence to the State Party and, where appropriate, to the national preventive mechanism.
    2. The Subcommittee on Prevention publishes its report, accompanied by possible observations of the State Party concerned, at the request of the State Party concerned. If the State Party makes public part of the report, the subcommittee of prevention may publish it, in whole or in part. However, no personal data is published without the express consent of the data subject.
    3. The Subcommittee on Prevention reports annually to the Committee against Torture on its activities.
    4. If the State Party refuses to cooperate with the Subcommittee on Prevention in accordance with the provisions of articles 12 and 14, or to take measures to improve the situation in the light of the recommendations of the Subcommittee on Prevention, the Committee against Torture may, at the request of the Subcommittee on Prevention, decide to the majority of its members, after the State Party has had the opportunity to explain itself, to make a public report on the prevention or to publish it.


    Part Four
    National preventive mechanisms
    Article 17


    Each State Party shall administer, designate or establish no later than one year after the entry into force or ratification of this Protocol, or its accession to the Protocol, one or more independent national preventive mechanisms to prevent torture at the national level. Mechanisms established by decentralized entities may be designated as national preventive mechanisms for the purposes of this Protocol, if they comply with its provisions.


    Article 18


    1. States Parties shall guarantee the independence of national preventive mechanisms in the exercise of their functions and the independence of their personnel.
    2. States Parties shall take the necessary measures to ensure that experts of the national preventive mechanism have the necessary skills and professional knowledge. They strive to ensure gender balance and adequate representation of ethnic and minority groups in the country.
    3. States Parties undertake to identify the necessary resources for the operation of national preventive mechanisms.
    4. When implementing national preventive mechanisms, States Parties shall take due account of the principles relating to the status of national institutions for the promotion and protection of human rights.


    Article 19


    National preventive mechanisms are invested at least the following:
    (a) Review regularly the situation of persons deprived of their liberty in the places of detention referred to in Article 4 with a view to strengthening, where appropriate, their protection from torture and other cruel, inhuman or degrading treatment or punishment;
    (b) To make recommendations to the competent authorities to improve the treatment and situation of persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into account the relevant norms of the United Nations;
    (c) To submit proposals and comments on existing legislation or bills in this regard.


    Rule 20


    To enable national preventive mechanisms to carry out their mandate, the States Parties to this Protocol undertake to grant them:
    (a) Access to all information regarding the number of persons deprived of their liberty in the places of detention referred to in Article 4, as well as the number of places of detention and their location;
    (b) Access to all information relating to the treatment of such persons and their conditions of detention;
    (c) Access to all places of detention and their facilities and equipment;
    (d) The possibility to speak in private with persons deprived of their liberty, without witnesses, either directly or through an interpreter if it appears necessary, as well as with any other person whose national preventive mechanism thinks it could provide relevant information;
    (e) The freedom to choose the places they visit and the people they meet;
    (f) The right to have contact with the subcommittee of prevention, to provide information and to meet with it.


    Article 21


    1. No public authority or public servant shall order, apply, authorize or tolerate any penalty against a person or organization that has provided information, true or false, to the national preventive mechanism, and that person or organization shall not be prejudiced in any other manner.
    2. Confidential information collected by the national preventive mechanism will be protected. No personal data will be published without the express consent of the data subject.


    Article 22


    The competent authorities of the State Party concerned examine the recommendations of the national preventive mechanism and engage in dialogue with it on possible measures to implement them.


    Article 23


    States Parties to this Protocol undertake to publish and disseminate annual reports of national preventive mechanisms.


    Part Five
    Declaration
    Article 24


    1. At the time of ratification, States Parties may make a declaration indicating that they defer the fulfilment of their obligations under Part 3 or Part IV of this Protocol.
    2. This adjournment is for a maximum of three years. Following duly formulated representations by the State Party and after consultation with the Subcommittee on Prevention, the Committee against Torture may extend this period of two years.


    Part VI
    Financial provisions
    Rule 25


    1. Expenses arising from the work of the Subcommittee on Prevention established under this Protocol shall be borne by the United Nations.
    2. The Secretary-General of the United Nations shall make available to the Subcommittee on Prevention the personnel and facilities necessary for the effective performance of the functions entrusted to him under this Protocol.


    Rule 26


    1. It is established, in accordance with the relevant procedures of the General Assembly, a special fund, to be administered in accordance with the Financial Regulations and Rules of the United Nations, to assist in financing the implementation of the recommendations that the Subcommittee of Prevention addresses to a State Party as a result of a visit, as well as the education programmes of national preventive mechanisms.
    2. The special fund may be financed by voluntary contributions from governments, intergovernmental and non-governmental organizations and other private or public entities.


    Part seven
    Final provisions
    Rule 27


    1. This Protocol shall be open for signature by any State that has signed the Convention.
    2. This Protocol shall be subject to ratification by any State that has ratified or acceded to the Convention. Instruments of ratification will be deposited with the Secretary-General of the United Nations.
    3. This Protocol is open to the accession of any State that has ratified or acceded to the Convention.
    4. Membership shall be effected by the deposit of an instrument of accession to the Secretary-General of the United Nations.
    5. The Secretary-General of the United Nations will inform all States that have signed or acceded to this Protocol of the deposit of each instrument of ratification or accession.


    Rule 28


    1. This Protocol shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.
    2. For each State ratifying or acceding to this Protocol after the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession, this Protocol shall enter into force on the thirtieth day after the date of the deposit by that State of its instrument of ratification or accession.


    Rule 29


    The provisions of this Protocol shall apply, without limitation or exception, to all constituent units of federal States.


    Rule 30


    There shall be no reservations to this Protocol.


    Rule 31


    The provisions of this Protocol shall not affect the obligations assumed by States Parties under a regional convention establishing a system of visits to places of detention. The Subcommittee on Prevention and the bodies established under such regional conventions are invited to consult and cooperate in order to avoid duplication and to effectively promote the achievement of the objectives of this Protocol.


    Rule 32


    The provisions of this Protocol shall not affect the obligations of States Parties under the four Geneva Conventions of 12 August 1949 and the Additional Protocols thereto of 8 June 1977, or the possibility that any State Party may authorize the International Committee of the Red Cross to visit places of detention in cases not provided for in international humanitarian law.


    Rule 33


    1. Any State Party may denounce this Protocol at any time by written notification to the Secretary-General of the United Nations, who shall then inform the other States Parties to the Protocol and the Convention. The denunciation shall take effect one year after the date on which the notification is received by the Secretary-General.
    2. Such denunciation shall not release the State Party from its obligations under this Protocol with respect to any act or situation that has occurred before the date on which the denunciation takes effect, or any action that the subcommittee of prevention has decided or may decide to adopt with respect to the State Party concerned; it will not in any way hinder the further examination of issues before the date on which the denunciation took effect.
    3. After the date on which the denunciation by a State Party takes effect, the subcommittee of prevention does not undertake the examination of any new issues concerning that State.


    Rule 34


    1. Any State Party to this Protocol may propose an amendment and deposit its proposal with the Secretary-General of the United Nations. The Secretary-General shall communicate the amendment proposal to the States Parties to this Protocol by asking them whether they support the organization of a conference of States Parties for the consideration of the proposal and its vote. If, within four months after the date of such a communication, at least one third of the States Parties shall vote in favour of the holding of the conference, the Secretary-General shall organize the conference under the auspices of the United Nations. Any amendment adopted by a two-thirds majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to the acceptance of all States Parties.
    2. An amendment adopted in accordance with the provisions of paragraph 1 of this Article shall enter into force when two thirds of the States Parties to this Protocol have accepted it in accordance with the procedure provided for in their respective constitutions.
    3. When the amendments come into force, they are binding on the States Parties that have accepted them, the other States Parties remaining bound by the provisions of this Protocol and any earlier amendments that they have accepted.


    Rule 35


    Members of the Subcommittee on Prevention and national preventive mechanisms enjoy the privileges and immunities that are necessary for them to exercise their functions independently. Members of the Subcommittee on Prevention shall enjoy the privileges and immunities provided for in section 22 of the Convention on the Privileges and Immunities of the United Nations, of 13 February 1946, subject to the provisions of section 23 of the Convention.


    Rule 36


    When travelling to a State Party, the members of the Subcommittee on Prevention shall, without prejudice to the provisions and purposes of this Protocol or the privileges and immunities of which they may enjoy:
    (a) Respect the laws and regulations in force in the State where they visit;
    (b) To refrain from any action or activity incompatible with the impartial and international character of their functions.


    Rule 37


    1. This Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, will be deposited with the Secretary-General of the United Nations.
    2. The Secretary-General of the United Nations shall maintain a certified true copy of this Protocol to all States.


    French Declaration


    in accordance with Articles 15 and 21 of the Optional Protocol to the Convention against Torture and Other Inhuman or Degrading Treatment or Punishment, no French public authority or official shall order, apply, authorize or tolerate any violation of any person or organization that has communicated information, true or false, to the subcommittee of prevention of torture or to its members


Done in Paris, December 15, 2008.


Nicolas Sarkozy


By the President of the Republic:


The Prime Minister,

François Fillon

Minister for Foreign Affairs

and European,

Bernard Kouchner

(1) This Protocol entered into force on 11 December 2008.
Download the document in RTF (weight < 1MB) Excerpt from the Authenticated Electronic Journal (format: pdf, weight: 0.7 MB) Download the document in RDF (format: rdf, weight < 1 MB)