Frequently Asked Questions
When was the National Agency for the Prevention of Torture (National Agency) founded and what are its legal foundations and competencies?
The establishment of the National Agency traces back to the Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) of 10 December 1984. Germany signed the optional protocol on 20 September 2006 and transposed it into national law by the law of assent of 26 August 2008. The National Agency combines the Federal Agency and the Joint Commission of the States for the Prevention of Torture. The Federal Agency is competent for all places of detention under the responsibility of the Federation (detention centres of the Federal Armed Forces, Federal Police, Customs Administration). The Joint Commission of the States is competent for all places of detention under the responsibility of the Federal States. These comprise the vast majority of places, in particular penal institutions, police stations and psychiatric facilities, but also places of detention for deportation and places of detention of child and youth welfare services as well as old people's and nursing homes. The Federal Agency was created by an administrative order of the Federal Ministry of Justice of 20 November 2008. The Joint Commission of the States was established by a state treaty of all Federal States of 25 June 2009 which entered into force on 1 September 2010.
What is the Optional Protocol to the UN Convention against Torture (OPCAT)?
The Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) of 18 December 2002 provides for improved protection from torture and ill-treatment by establishing National preventive mechanisms (NPM). Additionally, a UN Sub-Committee on the Prevention of Torture (SPT) was created which contributes to the prevention of torture and cruel, inhuman or degrading treatments by regular visits to places of detention in the treaty states. The National preventive mechanisms support the Sub-Committee's work in each country by preventive visits to places of detention.
What is torture?
Article 1 of the UN Convention against Torture defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
What are "places of detention" according to the Optional Protocol?
According to the Optional Protocol, the National preventive mechanism is competent for all "places of detention" under the jurisdiction and control of the state. In line with article 4, "places of detention" are places where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence. For this purpose, deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.
Why has a National preventive mechanism been established in Germany?
There was no agency in Germany which complied with the requirements established by the Optional Protocol to the UN Convention against Torture for National preventive mechanisms. The agencies that existed (e.g. Commission for psychiatry, Ombuds-Institutions) only covered parts of the required tasks. The National Agency for the Prevention of Torture is a mechanism that comprises all areas and which contributes to the prevention of torture and ill-treatment by a nationwide system of visits, independent from specific causes.
How is the National Agency organized?
The National Agency comprises the Federal Agency and the Joint Commission of the States. It is neither a non-governmental organization nor a state agency but an independent institution for the prevention of torture and ill-treatment. It is the National preventive mechanism according to article 3 of the Optional Protocol to the UN Convention against Torture. The National Agency is attached for purely organizational reasons to the Kriminologische Zentralstelle e.V. (KrimZ), an investigation and documentation institute of the Federal Republic and the States in Wiesbaden. The Kriminologische Zentralstelle has no influence on the National Agency's work.
What are the duties and responsibilities of the National Agency?
In order to prevent torture and ill-treatment, the National Agency regularly visits places of detention according to the Optional Protocol to the UN Convention against Torture. It shall point out shortcomings and, if necessary, make recommendations for improvement to the concerned authorities. The National Agency yearly reports about its activities to the Federal Government, the Governments of the States, the Bundestag (German Parliament) and the Parliaments of the States. It can also make recommendations and observations on legal provisions that are already in force or are being drafted.
How is the independence of the National Agency guaranteed?
The honourary members of the National Agency act independently and are not subject to legal or any other supervision by the Federation or the States. They are not subject to instructions and can only be recalled under the strict requirements of the German Judiciary Act.
How is the National Agency financed?
One third of the National Agency's funds are provided by the Federation and two thirds are provided by the States. Funds are administered and allocated by the Hessian Ministry of Justice, Integration and European Affairs.
How do the Federal Agency and the Joint Commission of the States cooperate?
Both institutions constitute the National Agency and form the German mechanism for the prevention of torture according to the Optional Protocol to the UN Convention against Torture. The Federal Agency and the Joint Commission work closely together and use the same material and human recourses. They also publish an annual joint activity report. The cooperation of the Federal Agency and the Joint Commission of the States is laid down in an administrative agreement.
Which legal standards does the National Agency apply when monitoring places of detention?
The National Agency principally recurs to German laws and the jurisprudence of the Federal Constitutional Tribunal and the Federal and Higher Regional Courts. It also includes the jurisprudence of the European Court of Human Rights, the recommendations of the UN Committee against Torture (CAT) and the UN Sub-Committee for the Prevention of Torture (SPT) as well as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) into its decision making.
What are the rights of the members of the National Agency?
The members of the National Agency have the right to unhindered and unrestricted access to all detention facilities, to all person in detention and to all related information. The right to access to all persons in detention also includes the right to have confidential conversations with these persons. The members of the National Agency also have the right to autonomously decide which places to visit and with whom to have conversations. Finally, according to the Optional Protocol, the members of the National Agency always have the right to be in contact with the UN Sub-Committee for the Prevention of Torture, to transfer information to it and to meet with its members.
Who participates in the National Agency's visits?
Depending on whether the installation to be visited is under federal or state competency, visits are made by the honourary director of the Federal Agency or the honourary members of the Joint Commission of the States respectively and are accompanied by a research assistant of the secretariat. The National Agency may have independent experts and interpreters accompany it during its visits.
What is the regular procedure for visits?
At the beginning of a visit, the visiting team of the National Agency talks to the facility's directon explaining the objective of the visit and the procedure. Then, the entire facility and the different detention areas are being inspected. Individual conversations are held with employees and detainees. In particular cases talks are also held with the staff council and medical or spiritual welfare staff. The National Agency also consults relevant documentation concerning detention/custody/confinement and other accompanying documents. Provisional results of the visit and the ensuing procedure are being explained to the facility's direction in a final conversation.
Are visits being previously announced?
The National Agency can conduct visits with or without prior announcement. Past visits have been announced at short notice. The members of the Joint Commission of the States possess an accompanying letter by the Hessian Ministry of Justice, Integration and European Affaires. The director of the Federal Agency legitimates himself, if required, with a letter by the Federal Ministry of the Interior or the Federal Ministry of Defence respectively.
How and to whom are the recommendations of the National Agency presented and how is their implementation being monitored?
A report is drawn up after each visit which is presented to the responsible controlling authority of the Federation or the State as well as to the facility that was visited. The facility comments the recommendations and enters into a dialogue with the National Agency about their implementation. The National Agency is also obliged to annually report on its activities to the Federal Government, the Governments of the States, the German Bundestag and the State Parliaments. The annual report contains the key results of the visits and the implementation of the Agency's recommendations. The National Agency can also control the implementation itself at a renewed visit to a facility.
Can the National Agency react to individual complaints?
According to international and German law, the National Agency's competence is limited to preventive action against torture. The National Agency is not an Ombuds-institution or an instance for individual complaints. Nevertheless, information about individual cases is of great practical relevance to the National Agency's work. It serves as background information for official visits and can influence the selection of places to be visited or the focus of the Agency's activities.
How can one provide the National Agency with information about individual cases and how is confidentiality being protected?
The National Agency can be contacted for any kind of inquiry at its e-mail address [email protected] Anonymous hints can be submitted via the contact form on the homepage which does not require any personal information whatsoever, or be sent by postal mail to the following address: Nationale Stelle zur Verhütung von FolterViktoriastraße 3565189 Wiesbaden All information received by the National Agency is treated with strict confidentiality.
Are voluntary work or internships possible?
Volunteering or internships in the National Agency are currently not possible.