A National Preventive Mechanism in Taiwan
Cover Photo／Yi-Ching Tsai (The Prison Museum in Chiayi, Taiwan)
Author／Pavel Doubek (Czech scholar and lawyer formerly working at Czech NPM)[i]
Translator／Yi-Ching Tsai (Researcher of Covenants Watch)
Cover Photo／The Control Yuan；Photo Credit: Wikimedia Commons
Dear Taiwanese readers, our NPM Travel Book has brought you to most of the types of places of detention in the Czech Republic, which are regularly visited by its National Preventive Mechanism (NPM). Since you already have a substantial understanding of how the NPM works, what places it visits and what forms of torture and ill-treatment it encounters, now is the time to return home and have a look for the NPM in Taiwan!
As you probably know, Taiwan has not yet established the NPM. Although the Legislative Yuan had already tabled a bill on the implementation of the UN Convention against Torture (CAT) and its Optional Protocol (OPCAT) last year, the bill remained undiscussed and it then expired due to parliamentary elections in January 2020.
However, it is very likely that the new government will propose the bill again. Based on the ongoing discussion, the new NPM is scheduled to be established within the Control Yuan, the ombudsman institution that was recently designated as the National Human Rights Institution of Taiwan.
Challenges for the Control Yuan to become, without undermining, the NPM
As you’ve read from our stories, the NPM is not a traditional oversight body, such as an ombudsman or a state inspector’s office. It is not made up of clerks who sit in their office waiting for the complaints. Nor does it focus on violations of administrative rules or employ an authoritative approach.
Instead, it is a unique mechanism composed of experts who travel relentlessly across the country and visit the most vulnerable people placed behind the bars or fixed to the hospital’s beds. Their watchword is “prevention”, according to which the reasoning and application of human rights standards and constructive dialogue with the visited facilities and the state authorities is the key to comprehensive and sustainable reforms.
There is no doubt that to become the NPM, the Control Yuan must undergo a thorough transformation. It must change not only its internal organisational structure but also its work strategy and general way of thinking.
It must not consider the NPM as a mere department, which will greatly diminish its role, but rather endeavor to enhance its visibility as an autonomous mechanism. When monitoring the detention places, it must be clear for everybody that the visiting team is acting as the NPM monitors, not like the staff of the Control Yuan.
A special way of increasing the visibility of the NPM and distinguishing its role from the rest of the Ombudsman institution is to publish the NPM Annual Report. This competence is enshrined in Article 23 of the OPCAT and is common to all NPMs around the world.
Annual reports differ among the NPMs I have analyzed, but their structures and contents show resembling features. They commonly provide general information about NPM and OPCAT, introduce in brief the NPM’s methodology and its annual activities, successes and challenges.
A large part of annual reports is devoted to monitoring activities sorted out according to the type of places of detention. Most annual reports are available online on NPMs’ websites in English, so it is a convenient way for the Control Yuan to learn and get inspired from the experiences of other countries.
Visiting all the places of detention in Taiwan
Hundreds of thousands of people are detained in detention places in Taiwan. For example, there are 62 correctional institutions with some 62,000 detainees under the Ministry of Justice; 339 police cells and 5 immigration detention centres under the Ministry of Interior; over 1596 social-care and health-care institutions under the Ministry of Health and Welfare, 28 special educational institutions under the Ministry of Education and 9 solitary confinements under the Ministry of National Defense.
Besides the permanent places of detention, the NPM has a right to visit places where persons stay temporarily, for example, pre-trial detention, transit zones in international airports detention, premises in courthouse as well as the means of transport where persons are deprived of their liberty, e.g. police or prison escort.
This is expressly stated by the Norwegian NPM: “The Ombudsman can also visit places where people are temporarily detained, for example during transportation by car or plane, holding premises for people waiting to be questioned by the police, or urgent care or emergency rooms.“
It is likely that these temporal places and a variety of unofficial detention places are not included in the official statistics. It will be the first task of the Taiwanese NPM to conduct in-depth research into the real number of all detention places, their structure, composition of detainees and relevant legal regulation. Based on this information, the NPM may then set-up the annual visit plan, develop visit methodology, invite relevant experts and set out for the monitoring journey. (Please refer to the Articles: ‘Setting Up An NPM Annual Visit Plan’ and ‘Planning a visit to a place of detention’.)
It is very important that monitoring is carried out regularly and is carried out at least weekly (or bi-weekly). For example, Georgian NPM makes an average of 12 visits per month. If the Taiwanese NPM applies such a high visit frequency, it can visit 144 facilities per year.
However, NPM visits should be well prepared and focused more on quality than quantity. In addition, it may sometimes be necessary to carry out a follow-up visit to ensure that the institution visited complies with the NPM recommendations. To increase the visiting frequency and maintain a high quality of monitoring at the same time, it is necessary for the Control Yuan to invite a number of experts and non-governmental organisations and formalize their mutual cooperation.
Cooperation with civil society and state authorities
In order to effectively fulfil the NPM mandate, the Control Yuan should cooperate closely with civil society, represented by various NGOs, academics, scholars, scientists and other experts.
There are many ways to ensure close and progressive cooperation. The Control Yuan may, for example, establish specialized advisory or consultative body involving representatives of civil society organizations as seen in Georgian or Norwegian NPM.
It may also entitle civil society organisations to participate in monitoring on an equal footing with the Ombudsman’s staff, the so-called “Ombuds plus” model as experienced in the Slovenian NPM. They may further participate in joint research projects, human rights education, awareness-raising activities, etc.
The NPM will come into contact with a number of state authorities during its mission, which naturally include the place of detention it visits, the legislative body and the government ministries. In a more specific situation, it may come into contact with public prosecutors, courts, inspecting bodies, local administrative bodies, and other public authorities and institutions.
Every stakeholder plays a different role in torture prevention and it is important for the NPM to establish a clear cooperation strategy. It is necessary to clarify the rules for the exchange of information with relevant stakeholders with respect to OPCAT’s requirement on the confidentiality of NPM information.
For example, the Norwegian NPM has established an understanding with the Attorney General under which it may inform him or her about concerns of ongoing torture or ill-treatment so to facilitate an investigation by the Attorney General. It is further ensured in this understanding that the NPM will only share the information it itself find sufficient for the Attorney General to start his or her own investigation and may never be pressured to give evidence about such findings. (Information provided by Helga Fastrup Ervik, Head of Norwegian NPM)
Towards the establishment of NPM in Taiwan
The UN Subcommittee on Prevention of Torture (SPT) makes it clear that “the mandate and powers of the NPM should be clearly set out in a constitutional or legislative text.” Irrespective of the chosen legal framework, the legal basis should be clear enough to identify what institution is designated as the NPM, who in the institution is in charge of the NPM mandate, what exact powers do the NPM have, and so forth.
Ambiguous legal basis for the NPM caused some problem for the Moldovan NPM (an Ombuds plus institution), where the law generated various interpretations on who fulfils the mandate of the NPM.
When drafting a concrete NPM structure, several questions must be answered:
- Who will be officially responsible for NPM functioning (who are the NPM members?)
- Who will be charged with the regular monitoring activity (who are the monitors?).
- How to meet the requirement of expert composition (who are and how to recruit the experts?)
- Who provides the NPM with advice on monitoring, set-up methodology and developing recommendations (who are the advisors?).
- How to facilitate and regulate the dialogue and information exchange with relevant stakeholders and within the institution (what internal rules and guidelines are necessary?).
Once the Legislative Yuan of Taiwan decides to provide the mandate and a clear structure of the NPM by passing an implementation act on CAT and OPCAT or an Organic Law on NPM, then the Control Yuan shall proceed to set more detailed internal rules on the overall operation of the NPM.
From our discussions above, it is clear that establishing an NPM is much more than just giving the current Control Yuan a new title. Only when the Control Yuan becomes fully aware of its preventive mandate and implements this new role in all its working rules and procedures, then we can finally say that Taiwan has established a true NPM.
The last point I’d like to remind you is the OPCAT requirement that the NPM should establish close cooperation with the SPT. Due to the international status of Taiwan, it is probable that the SPT will be reluctant to start official contact with the NPM.
Notwithstanding this, Taiwan shall strive to establish a dialogue with the SPT on the OPCAT implementation. If the communication with the SPT is of no avail, it is desirable to establish a substitute international monitoring mechanism.
Just like how it has successfully created a “local model” of treaty body reviews, Taiwan can invite former members of the SPT, experts from the prominent international non-governmental organization Association for the Prevention of Torture (APT) and current or former members of NPMs around the world to provide advice on the NPM establishment and assist in the regular assessment of its functioning.
In recent years, Taiwan has taken major steps to strengthen democracy and the protection of human rights through the implementation of several human rights treaties. On 10 December 2019, the Legislative Yuan passed the law to establish the National Human Rights Commission within the Control Yuan. If a fully-functioning NPM is be established in the near future, it will definitely be another significant step forward and make Taiwan the leading human rights messenger in the Asia-Pacific region.