Monitoring police
detention through the OPCAT
lens
Amanda Dissel: Delegate in
South Africa
Association for the Prevention
of Torture (APT)
• International organisation dedicated to the
prevention of torture.
• Recognise the risk of torture and other illtreatment in places of deprivation of liberty.
• Advocates for the ratification, domestication
and implementation of the Convention
against Torture and the OPCAT.
• ‘Experience shows that most acts of
torture, and certainly the most cruel and
egregious, happen in the first few hours
or days after a person’s arrest, and
while he/she is technically under
preventive detention’ (Special
Rapporteur, 2011)
Police Detention in South Africa
• Over 1,6 million people arrested in 2011/12 (48% for serious
crime). 1125 police stations nationally.
• SAPS does not report on details of custody management. No
information on detention: where, for how long, etc. No
information on conditions in police detention.
• 1079 people escaped in 2011/2012 – 74% re-arrested in same
year. 68% increase from previous year.
• SAPS annual report:
– need to address upgrades and repairs of stations and cells
– Needs to equip members to deal with suspects and persons in custody –
924 SAPS members trained on HR (compared with over 8000 trained on
DVA) (2011/2012)
– Need a method of recording and handover procedures for detainees
– More sensitivity in dealing with diabetics, intoxicated and unresponsive
detainees to prevent deaths (SAPS Annual report, 2011/2012, p.4)
• IPID received 232 notifications of
deaths in police custody in 2011/2012.
Table 9: Deaths in police custody by circumstances
Short description
Number
Percentages
Injuries sustained in custody
79
34%
Injuries sustained prior to custody (vigilantism)
48
21%
Natural causes
105
45%
Total
232
100%
• 4 deaths as a result of torture.
– (Source: ICD Statistical report 2011/12)
Rights of detainees
• S 35 of the Constitution
• SAPS Policy on the Prevention of
Torture and Treatment of Persons in
Custody (1999).
• SAPS Standing orders related to police
custody: arrest, searching suspects,
medical treatment, cell management,
cell registers, visits to cells.
• ‘As previously emphasized by the Special Rapporteur
and his predecessors, the most effective preventive
measure against torture and ill-treatment is the
regular inspection of places of detention. Regular
inspections can ensure the adequate implementation
of … safeguards against torture, create a strong
deterrent effect and provide a means to generate
timely and adequate responses to allegations of
torture and ill-treatment by law enforcement officials’
(SR, Aug 2010).
Optional Protocol to the Convention
against Torture (OPCAT)
• Establishes a system of regular visits to
places where people are deprived of their
liberty, in order to prevent torture and illtreatment.
• International Subcommittee on Prevention of
Torture (SPT)
• National Preventive Mechanisms (NPM)
• South Africa signed OPCAT in 2006. Not yet
ratified.
OPCAT NPM
• States parties must establish at least one or
more NPMs to visit all places where people
are deprived of their liberty (art 19):
– To regularly examine the treatment of persons
with a view to strengthening their protection
against torture and ill-treatment;
– To make recommendations to the relevant
authorities to improve treatment and conditions;
– To submit proposals and observations on existing
and draft legislation.
The NPM must…
• Operate independently of the authorities.
• Have access to all information concerning numbers
of people deprived of their liberty.
• Information relating to the treatment of people.
• Access to all places of detention and their
installations and facilities.
• Opportunity for private interviews with persons
deprived of their liberty. Persons to be selected by
visitors.
• Ability to choose the places they visit.
• Publish annual reports of their visits.
Oversight mechanisms over SA
police detention
• National and Provincial Ministers
• Parliamentary Committee on Police: visits
using station monitoring tool, teams of visitors, write reports, feedback
to police, follow- up on recommendations. Not all reports publically
available.
• Civilian Secretariat on Police
• Provincial Secretariats on Police
• Independent Police Investigative
Directorate (IPID)
• Community Police Forums (CPFs)
IPID
• ICD’s mandate was revised under Independent Police
Investigative Directorate Act 1 of 2011.
• S 2(d) – IPID is to provide for independent and impartial
investigation of identified criminal offences allegedly committed
by SAPS or municipal police.
• Includes: deaths in police custody or as a result of police action;
discharge of a police firearm; rape by police offices or rape in
custody; complaints of torture or assault; and corruption matters.
• S 4: the IPID operates independently of SAPS.
• Executive Director is nominated by Minister & confirmed by
Parliamentary committee – has been without director for over a
year.
IPID
• IPID does not have legislative mandate to conduct visits of
police stations. ICD did conduct station visits as a discretionary
measure.
• The ICD conducted 222 station audits, and 96 cell inspections in
2011/12. (Source: ICD Statistical report 2011/12). Reports not
published.
• Also produced research reports on custody management, and
deaths in custody in 2009.
• Not clear to what extent this provides for on-going monitoring or
follow-ups, or whether this function will continue under new
mandate.
• PC Committee concerned about the low uptake on
recommendations made to police.
Civilian Secretariat of Police
• Civilian Secretariat for the Police Service Act, 2 of 2011
(implementation from Dec 2011).
• Provides for civilian oversight over police and to provide
strategic advice & administrative support to the Minister of
Police. Aims to monitor police services and assess policies.
• Aims to liaise & establish partnerships with stakeholders and
community.
• Conduct research; advise and support the Minister in the
exercise of his powers and functions.
• Provide the Minister with reports on the performance of the
police service, and the implementation and compliance by police
with policy, directives and instructions.
• Developed National Monitoring and Evaluation Tool
(NMET) to identify key service delivery trends in
police stations. Used by all provincial secretariats.
•
Section on custody management: condition of cells, separation of
categories of detainees; no. of detainees; check warrant of
detention; escapes, deaths; reporting of deaths; meals; complaints
mechanisms; visits to cells.
• Conducted 155 monitoring visits – 57.3% to police
stations.
• Individual station reports were generated and
consolidated into a national trends analysis report
(not public). (SAPS AR, 2011/12, p. 48).
OPCAT vs the Civilian Secretariat
• The Civilian Secretariat is not independent of
policing authorities, as it reports to and
advises the national Minister.
• Its annual reports are contained within SAPS
annual reports.
• It has the authority to enter any building or
premises of the police, and to request any
information or documents relating to matter
under control of the police service (S 9).
• Reports are not publically available.
Provincial Secretariats
• Civilian Secretariat Act provides that each MEC for policing
must establish a provincial secretariat with the mandate of the
Civilian Secretariat, to:
– Monitor and evaluate the implementation of policing policy and
police conduct in the province
– Assist the civilian secretariat with monitoring and evaluation
projects
– Promote community police relationships; promote partnerships; and
enhance community structures.
• The provincial secretariat must report to the MEC and
Secretary of Civilian Secretariat 1/4ly. The head of
the provincial department must submit annual reports
to the MEC and provincial legislature.
Department of Community
Safety, Western Cape
•
Use NMET tool for visiting police stations. Looks at Station Management;
Community Service Centre (CSC); Domestic Violence Act; Child Justice Act;
Criminal Law (Sexual Offences and Related Matters) Amendment Act (SOA);
Establishment of Victim Friendly Room; Custody Management; Second Hand
Goods Act; Firearm Control Act; Exhibit Store; Sector Policing; Relations with
the Community; Detective Services; and Resource Management.
•
Method: Meet with Station Commander, CPF Chairperson, component
heads. Also, observations, perusal of documents, feedback, physical
inspection and photographs.
Meet with station manager at conclusion of visit to discuss findings.
Discuss findings with CPF chairperson who will present them at public
meeting.
Report referred to provincial management of SAPS for comment.
Then tabled at Provincial Parliament at discretion of Minister of
Community Safety.
•
•
•
•
DOCS, Western Cape
• Limited check on detention: check register;
check cells; check separation of categories of
detainees, photographs of cells.
• 2012/13 – 149 stations – visited about 90 with
aim of monitoring custody management.
• MEC also conducts monitoring and oversight
visits to police stations.
• Reports are not made public.
• Visits are scheduled rather than unannounced. (tel.
interview D. Oosthuizen, Dir. Civilian Oversight).
Western Cape Community Safety
Act 3 of 2013
• Aims to provide for policing oversight of the Province in terms of
Constitutional Provisions (S 206) & outlines functions of
Provincial Minister.
• S 4(1)(iv) provides for monitoring the treatment and
conditions of persons held in police custody in order to
determine recognition of S 35 rights.
– May request & obtain information & documents
– Enter any building or premises, vehicle or property
– Entitled to assistance of police service.
• May authorise any persons to conduct these functions for
remuneration. Possible role for CPF.
• Provincial Commissioner of police must report to MEC on the
number of persons arrested, those referred to court,
prosecutions and convictions, as well as other issues.
Western Cape Community
Safety Act
• Establishes Office of Western Cape
Provincial Police Ombudsman,
appointed by the Premier, to:
– Receive and investigate complaints
regarding alleged inefficiency and
breakdown in relations between community
and police.
• Must report annually to the Provincial
Minister.
Conclusions
• There is very little information on the conditions and treatment of
detainees available to the public.
• Provincial secretariats conduct the most regular and numerous
visits.
• Existing visits take place in framework of compliance monitoring.
• No wholly independent mechanism.
• Legislature does not provide for clear visiting function.
• Uncertain what impact visits have on treatment and conditions.
• Therefore, there is a need for an independent system of regular
visits, and it should be catered for in legislation.
• SA needs to ratify OPCAT and designate one or more NPMs, to
carry out visits to police stations.
APT, Monitoring Police Custody: A Practical Guide
• APT developed a guide for use by NPM
monitors as well as other monitors of police
custody.
• Sets out the framework for human rights, risks
of police detention, need for regular monitoring,
and method of visits.
• Has been translated into 17 languages and
distributed widely.
Forward-looking monitoring
• Regular visits can provide information which is used to analyse
risks, dangers and patterns of torture and ill-treatment or other
abuse.
• Visits should be forward looking and aim at making
recommendations.
• Must hold private interviews with detainees.
• Look at the policies and legal framework governing detainees.
• Need to understand the management structures and systems.
• Must examine risk areas: restraint measures, searches,
interrogation, length of detention, conditions in custody.
• Access to an implementation of safeguards
• Look at the functioning of systems – how do they actually work.
• Needs to take into account vulnerable detainees: LGBTI
detainees, non-nationals, children, disabled and mentally ill.
Methods of visits
• Confidential interviews in private with detainees –
monitors to choose who to speak to.
• Prevent any reprisals to detainees – all or nothing
approach.
• Meeting with station commander to obtain basic
information.
• Visit all facilities and structures at police station.
• View all records: custody records, visits to police
stations, access to external visitors, medical
practitioners, lawyers, etc.
After the visit
•
•
•
•
Analyse the findings
Draft report presenting key facts and findings
Protect the confidentiality of detainee
Provide recommendations to improve
treatment and conditions
• Discuss findings and recommendations with
key actors: head of PS, police commissioner,
other HR actors.
• Conduct follow up visit
Recommendations
• South Africa needs to ratify OPCAT and
designate one or more NPMs.
• Must be a dedicated system of visits to
police stations which operates
according to OPCAT principles.
Thank you
For information on torture and torture
prevention
www.apt.ch