Monitoring police detention through the OPCAT lens

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Monitoring police detention through the OPCAT
lens
Amanda Dissel Delegate in South Africa
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Association for the Prevention of Torture (APT)

• International organisation dedicated to the
  prevention of torture.
• Recognise the risk of torture and other
  ill-treatment in places of deprivation of
  liberty.
• Advocates for the ratification, domestication and
  implementation of the Convention against Torture
  and the OPCAT.

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• Experience shows that most acts of torture, and
  certainly the most cruel and egregious, happen in
  the first few hours or days after a persons
  arrest, and while he/she is technically under
  preventive detention (Special Rapporteur, 2011)

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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)

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• IPID received 232 notifications of deaths in
  police custody in 2011/2012.
• 4 deaths as a result of torture.
• (Source ICD Statistical report 2011/12)

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
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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.

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• 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).

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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 ill-treatment.
• International Subcommittee on Prevention of
  Torture (SPT)
• National Preventive Mechanisms (NPM)
• South Africa signed OPCAT in 2006. Not yet
  ratified.

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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.

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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.

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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)

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IPID

• ICDs 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.

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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.

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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.

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• 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).

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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• Thank you
• For information on torture and torture prevention
• www.apt.ch