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 ill- treatment 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) 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 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/ deaths as a result of torture. –(Source: ICD Statistical report 2011/12) Table 9: Deaths in police custody by circumstances Short descriptionNumberPercentages Injuries sustained in custody7934% Injuries sustained prior to custody (vigilantism)4821% Natural causes10545% Total232100%

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 ill- treatment. International Subcommittee on Prevention of Torture (SPT) National Preventive Mechanisms (NPM) South Africa signed OPCAT in 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 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 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