Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Comments of the national preventive mechanism on the recommendations and observations addressed to it in connection with the Subcommittee visit to Costa Rica undertaken from 3 to 14 March 2019 * , **

[Date received: 18 March 2020]

I.Introduction

1.With regard to the recommendations made by the Subcommittee, article 13 of Executive Decree No. 39062-MJP, containing the regulations of Act No. 9204 on the establishment of the national mechanism for the prevention of torture of Costa Rica, states that:

(a)The national mechanism for the prevention of torture will observe and apply the advice and guidelines issued by the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in its annual reports, specific reports or any other type of communication;

(b)The Subcommittee’s observations will remain strictly confidential, unless otherwise established by that international body;

(c)The national mechanism for the prevention of torture will follow up on the recommendations that the Subcommittee makes to Costa Rica during its visits and in its reports. The mechanism will also submit compliance reports to the Subcommittee.

2.In an email sent on 9 December 2019, the national preventive mechanism of Costa Rica authorized the Subcommittee to publish the report containing its recommendations, in accordance with article 16 (2) of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

A.Structure and independence

Comments of the national preventive mechanism on the recommendations contained in paragraphs 16 and 17 of the recommendations and observations addressed to it in connection with the Subcommittee’s visit (CAT/OP/CRI/RONPM/1)

3.The mechanism shares the concern expressed by the Subcommittee about understaffing. The recruitment of medical and psychological experts would help the mechanism better fulfil its mandate in the prevention of torture, but the solution is not in the hands of the mechanism, as it is a budgetary issue. Costa Rica is currently suffering from a serious economic and financial depression and, therefore, the creation of new public sector posts has been suspended.

4.The national preventive mechanism is committed to requesting the creation of these posts, in accordance with the Subcommittee’s recommendation, once State finances have improved and stabilized.

B.Visibility

Comments of the national preventive mechanism on the recommendations contained in paragraphs 20, 21, 22, 23, 24, 25 and 26 of the recommendations and observations addressed to it in connection with the Subcommittee’s visit

5.The national preventive mechanism submits its annual reports to the heads of State institutions and holds a press conference to publicize them. There was an exception in 2019 because the report was issued after the established deadline owing to unforeseen work circumstances, which prevented the press conference from being held. Nonetheless, the report was submitted to the public authorities.

6.The national preventive mechanism agrees with the Subcommittee’s recommendation to work more closely with the media in a positive and assertive way, provided that this does not hinder the mechanism’s ability to use persuasion with the public authorities and in discussion forums.

7.The recommendation to work more closely with other civil society actors to achieve further recognition of the mandate of the national preventive mechanism and promote information-sharing is a positive one. Given the limited number of staff available to the mechanism, as noted by the Subcommittee, the mechanism has focused on positioning itself and having an impact on the authorities that manage the country’s detention centres or are involved in detention processes.

8.The national preventive mechanism has been making inroads on training at the prison system training school and in the academy to raise awareness about the mechanism’s mandate and to provide training on the prevention of torture and ill-treatment and on safeguards for persons deprived of their liberty. These activities are being carried out without compromising the primary mandate, namely monitoring places of detention. Thus, given the scarcity of human resources at its disposal, the national preventive mechanism has prioritized the efforts that have the greatest impact.

9.In this connection, the national preventive mechanism has been discussing with civil society actors the establishment of an advisory council, whose members would be appointed through an agreement with the mechanism’s Executive Directorate, with a view to ensuring the involvement of civil society, exchanging information and providing feedback on the mechanism’s mandate.

10.The prison population fluctuates greatly in some centres or depending on their legal status. The mechanism considers that there will probably always be some confusion on the part of persons deprived of their liberty concerning the difference between the mechanism and the Ombudsman’s Office, since it is the Ombudsman’s Office that handles complaints, even though the mechanism receives them. As indicated in the previous paragraphs, in order to comply with the recommendation, members of the mechanism will always carry their badge and ID card and information material on the national preventive mechanism.

11.With regard to the recommendation that members of the national preventive mechanism be provided with clothing so that the population deprived of liberty can distinguish them from members of the Ombudsman’s Office, members of the mechanism currently wear one of two distinctive vests, either khaki or light blue, marked with the name of the mechanism. In addition, members of the mechanism visibly wear their ID cards, which are used to enter the various places of detention, psychiatric hospitals and shelters for minors. Moreover, information leaflets have been prepared for distribution to detainees, in accordance with the recommendation.

12.The recommendation in the report concerning the manner in which members of the mechanism present themselves to the authorities of places of detention and persons deprived of their liberty is unclear; however, the recommendation was duly reviewed by the mechanism’s team.

C.Joint visit and interview methodology

Comments of the national preventive mechanism on the recommendations contained in paragraphs 27, 28, 29, 30, 31, 32, 33, 34, 35 and 36 of the recommendations and observations addressed to it in connection with the Subcommittee’s visit

13.The national preventive mechanism welcomes the recommendations made by the Subcommittee concerning the joint visit and interview methodology.

14.In this regard, the members of the national preventive mechanism have held several meetings with a view to conducting an in-depth review of inspection programmes, monitoring guidelines and pre-inspection documents, which are always used in conducting inspections. Work is currently under way to amend some aspects of these documents, as well as the final inspection report, in order for them to have a greater impact.

15.The national preventive mechanism conducts four types of inspections:

(a)General or thorough inspections are longer, usually lasting from two days to one week, depending on the size of the facility. The national preventive mechanism has conducted as many as 17 consecutive visits to a single facility during a single monitoring inspection to obtain the required information. These types of inspections are in-depth and analyse all aspects of a facility’s operations. Efforts are made to thoroughly document the situation, risk factors and good practices;

(b)Ad hoc inspections are short inspections, usually lasting one day, to a specific facility, and are mainly conducted in order to follow up on recommendations or to examine a specific issue;

(c)Thematic inspections are inspections in which a thematic research objective is usually established beforehand and all the procedures and inquiries are related to it. They may be conducted in a single facility or in a group of facilities in which there is a particular cross-cutting issue. The objective is to carry out a cross-cutting analysis of risk factors for human rights violations or of good and bad practices;

(d)Inspections made at the request of the judicial authorities are carried out in order to gather evidence for the purpose of addressing a complaint filed with a sentence enforcement court or an appeal for amparo or habeas corpus before the Constitutional Chamber of the Supreme Court.

16.With regard to the joint inspection that was conducted, although the Subcommittee announced the possibility of conducting such an inspection months in advance, owing to a logistical issue, the mechanism was not informed of the date or reason for the inspection, nor had the place to be visited been arranged. The national preventive mechanism suggested conducting the inspection in Puntarenas Province to include three different centres, but that was not possible for safety reasons, so the mechanism did not schedule it. It did not schedule the inspection of the Vilma Curling Rivera Institutional Care Centre either, which was conducted without prior analysis and without producing the preliminary inspection document or carrying out the respective follow-up.

17.The national preventive mechanism was not aware that the visit – not an inspection – to the Vilma Curling Rivera Institutional Care Centre would be assessed as a general inspection. Therefore, the mechanism embarked on the joint visit with the Subcommittee under the impression that it was for information purposes only, and thus did not carry out the inspection procedures, such as the preparation of the preliminary document, or apply the programme or the specific guidelines for women’s prisons. Instead, it made a point of informing the members of the Subcommittee about how the national prison system works. The national preventive mechanism was not familiar with the Subcommittee’s working methods and its approach was oriented more towards collaboration than towards conducting an inspection.

18.Thus, the national preventive mechanism suggested dividing the members of the Subcommittee delegation into two groups during the visit so that they would gain a more comprehensive understanding of how a prison works in Costa Rica. In each group there was only one member of the mechanism to carry out monitoring, while the other member was in charge of administrative matters, which made it extremely difficult to carry out general monitoring.

19.Ordinarily, interviews with a prison director last no longer than 10 minutes. In the event that more information is needed, one or two people stay in the interview and another group immediately begins the inspection of the areas where there is the greatest risk of acts of torture or ill-treatment being committed in order to ensure that situations that could lead to violations of rights are not concealed. In this case, the length of the interview was extended so that Subcommittee members could ask their questions.

20.Concerning the subject of the interviews, the mechanism acknowledges that mistakes were made during that visit. In this regard, the members of the mechanism held a meeting to analyse what happened and take note of the Subcommittee’s recommendations. However, there was consensus among the members that this is not how inspections are normally conducted and that this was conducted as an informational visit.

21.Through observation, the national preventive mechanism selects individuals who wish to be interviewed and provides them with all the necessary information. In some cases, to avoid reprisals, the interview is carried out inside the prison blocks to prevent security personnel from observing who is providing information. The mechanism deploys a distraction strategy with the prison staff to prevent them from coming closer to listen or see who is being interviewed. When people so request or when they agree, the interview is conducted in private outside the prison blocks.

22.With regard to possible reprisals against persons deprived of their liberty, the national preventive mechanism notes that it should avoid conducting interviews in the presence of prison personnel and should strengthen its capacity in this area. The mechanism takes the opportunity to request training on this sensitive subject.

V.Next steps

Comments of the national preventive mechanism on the recommendations contained in paragraph 41 of the recommendations and observations addressed to it in connection with the Subcommittee’s visit

23.The national preventive mechanism held meetings to consider the Subcommittee’s report and had planned to comply with the recommendations during the first half of 2020. However, with the health emergency caused by COVID-19, some measures have been postponed until the first months of the second half of the year.

IV.Strategy for follow-up to the recommendations of the national preventive mechanism

24.The national preventive mechanism takes note of the recommendations made in this section. With regard to the recommendation to submit reports to the authorities quickly, the normal time frame is 15 to 20 calendar days, depending on the findings and the length of the report. In this specific case, the national preventive mechanism had not scheduled this inspection and was in the middle of a competitive public selection process to recruit a staff member and was also drafting its annual report.

25.The national preventive mechanism notes that its recommendations should be exhaustive and measurable. In this respect, as previously mentioned, some aspects of the inspection guidelines, inspection programmes and the format of the preliminary inspection documents and reports are being amended with a view to substantially improving inspections, recommendations and the impact of the recommendations.

26.With regard to follow-up to recommendations, as noted in the Subcommittee’s report, the national preventive mechanism does not have sufficient human resources, so it must devise systems that enable it to strike a balance between follow-up and monitoring of detention centres. In other words, the mechanism’s limited human resources and time need to be used in such a way that neither monitoring nor follow-up are sacrificed.

27.At the meeting of members of the national preventive mechanism, it was decided that a logistics system would be established to expedite follow-up, including by notifying the authorities and encouraging ad hoc inspections, with short visits to verify compliance.

Final provisions

28.The national mechanism for the prevention of torture of Costa Rica appreciates the visit by the Subcommittee delegation and the meetings held with its members. The collaboration of the head of delegation, Mr. Roberto Fehér, before, during and after the visit to Costa Rica has been extremely positive.

29.The national preventive mechanism considers the Subcommittee’s visit to have been very positive, as it allowed us, through its recommendations, to receive feedback on improving our implementation of the mandate to prevent torture and ill-treatment and to establish methods for coordination between both bodies.

30.At the institutional level, the visit and the rapprochement between the Subcommittee and the national preventive mechanism have helped strengthen our mandate and maintain our credibility in the eyes of the authorities.

31.With regard to the mandate established in the Optional Protocol, as a “new generation” instrument, the preventive mandate must be strengthened and reflected in the work of the mechanisms and bodies working on the prevention of torture. It should not be confused with reactive work and reporting, as this could undermine the work of the national preventive mechanisms.

32.Each mechanism develops its own preventive strategies in accordance with the sociopolitical context, level of institutional capacity and degree of democracy in each State. These elements must be taken into account when establishing work strategies.

33.It is necessary and fundamental that each mechanism seek to attain high standing and credibility in the eyes of the authorities, as the impact of its recommendations depends on this. In the case of the national preventive mechanism of Costa Rica, persuasion through dialogue is an effective tool.

34.Therefore, the possibility of working more closely with the media should be approached very carefully, and should not necessarily involve reporting violations, since national preventive mechanisms should not be characterized as complaint bodies. Doing so not only undermines the mandate and philosophy set out in the Optional Protocol, but could also hinder dialogue with the authorities to achieve effective results based on the mechanisms’ recommendations.

35.The filing of complaints by the national preventive mechanisms should be treated as an exception in the event of a specific finding that significantly compromises the rights of a person deprived of liberty or of the community, as provided for in article 19 (a) of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides for the protection of the rights of persons deprived of their liberty.

Comments of the national preventive mechanism on the recommendations contained in paragraphs 41, 42, 43 and 44 of the recommendations and observations addressed to it in connection with the Subcommittee’s visit

36.With regard to paragraphs 41, 42, 43 and 44, the national preventive mechanism is ready to continue its ongoing dialogue with the Subcommittee and to respond to any future requests and remains interested in discussing the visit that took place with its members. The mechanism requests training by the Subcommittee, when possible, on how to conduct interviews and prevent reprisals.