Torture Prevention and the Costa Rican Defensoría de los Habitantes

Costa Rica ratified the CAT on 11 November 1993 and the OPCAT in November 2005. The Foreign Ministry proposed to the Defensoría that it become the NPM and in February 2007 the office was designated by executive decree.  The Costa Rican Defensoría de los Habitanteswas the first NHRI in Latin America to be designated the NPM under the OPCAT.

Personnel have reflected on the significance of designation:

“According to the Protocol the important thing is that the [candidate institution] have a trajectory, an experience in dealing with the issue of torture, and credibility…As such, it was gratifying as it was a species of recognition of the work we have been developing and now it is formalised with OPCAT…”[1]

The Defensoría has engaged in inspecting detention facilities since its creation in 1993, highlighting in particular immigration detention centres and police holding facilities. Structurally, it is one of the least robust NHRIs in Latin American. However, it is compliant with the UN Paris Principles.  For instance, the Costa Rican office stands alone in the region as the only NHRI not to have been granted constitutional status.  It also lacks immunity from prosecution.

However, the Costa Rican model’s is comparatively unconstrained in terms of mandate and powers, including unrestrictive inspection of public facilities, access to documents except state secrets, and the enforceable summoning, by police escort if necessary, of public officials. The NPM directive mandates the Defensoría to conduct regular inspections, without prior notice, of detention facilities under the jurisdiction of the Ministries of Justice and Public Security. In turn, Article 3 obliges these Ministries to cooperate with the Defensoría.

One obstacle that the Defensoría has confronted is securing the resources necessary to fulfilling this additional role. A request in 2008 was rejected by Congress.  A lack of funds has delayed the formation of the NPM unit until 2009 and the work of the unit continues to be affected by a lack of logistical and economic resources.

The Defensoría has subsequently sought to codify its NPM function in law in accordance with Article 18 of the OPCAT and the Paris Principles.  To this end, a law project was submitted to Congress in October 2011, but is yet to be approved.  In the interim, the Defensoría has issued its own directive detailing the role and responsibilities arising from this additional responsibility. The executive decree does not explicitly grant the Defensoría the authority to inspect other public and private detention locations such as juvenile centres and psychiatric institutions. However, in practice, the office has interpreted its jurisdiction expansively while calling on the government to fully comply with its obligations under the OPCAT.

The directive creates a dedicated NPM unit within the Defensoría of three individuals (a political scientist and two lawyers). It also often includes a trained physician seconded from within the organisation. Furthermore, the directive issues instruction to all areas within the Defensoría to coordinate activities with the NPM. For instance the Unit for International Cooperation is to collaborate on a national education campaign on torture prevention. Generally, the NPM is to serves as an “informational hub” to strengthen the Defensoría’s work on torture prevention across all areas of protection and promotion.

The NPM Unit has a mandate to monitor legislation, executive decrees, and other standards to ensure compliance with torture prevention norms. It may also submit amparo and habeas corpus actions on behalf of persons detained illegally or where the conditions of detention do not meet minimum domestic or international standards. However, this power has been used very sparingly.

According to the annual reports, the Defensoría/NPM Unit conducted 20 visits of places of deprivation of liberty in 2007, climbing to 67 in 2009,  65 in 2010 and 41 in 2011. These include prisons, police and judicial holding cells, maximum security units, psychiatric facilities, immigration detention centres, and hospitals. The NPM has compiled a database of all places of deprivation of liberty, detention and custody as well as a chronogram of visitations. In turn, the NPM Unit can refer any matters for follow-up to the Defensoría’s Area of Defence which is, in turn, obliged to inform them of the results of any investigation.

The NPM Unit has also since 2010 issued detailed annual reports spotlighting a host of issues of concern including detention regimes in maximum security facilities, overpopulation within the prison system, denial of the right to health, vulnerable groups, especially women, the elderly, disabled and young people, inadequate food and nutrition, and a crumbling infrastructure. The Unit also details individual cases, making recommendations to the relevant authorities and specifying steps for follow-up.

The Unit has a dedicated website and has effectively deployed a publicity strategy alongside the Defensoría press office. This has resulted in media exposure of cases concerning the alleged torture of immigrants, prison detainees, as well as overpopulation in the country’s prisons.

In terms of inspections, the NPM Unit has devised a three-fold protocol for visitations including (1) exhaustive visits of more than one day in situ, (2) ad hoc visits to follow-up on recommendations, and (3) thematic visits dedicated to investigating a specific issue. Following a visit, the NPM Unit issues a report to the relevant authority detailing their findings, highlighting issues of concern, and requesting confirmation on measures taken to rectify the situation. The official is requested to acknowledge the report within 10 days of receipt.

The inspection reports make detailed reference to domestic and international standards. For instance, the Defensoría has emphasised that according to the Costa Rican Constitutional Court handcuffs may only be used in exceptional circumstances.  Detention authorities have also been directed to the UN CESCR and minimum regulations in the treatment of inmates as well as rulings by the IACHR.

These visits have uncovered violations of personal integrity and torture in maximum security installations. Visits may also respond to urgent situations, for instance in 2009 the Unit undertook an extensive investigation into the outbreak of the flu virus H1N1 in the prison population. In 2011, the Unit intervened following a deadly confrontation between inmates and prison staff. The Defensoría also has offices throughout the national territory which are directed to coordinate activities with the NPM Unit.

The NPM Unit reports that in general public authorities has been cooperative, notably the Minister of Justice has facilitated a high-level commission to monitor NPM follow-up activities.  Although DHR does not have formal authority to inspect detention facilities of the judiciary, an inter-institutional agreement has been reached. The NPM Unit may conduct inspections alongside local authority health officials who then issue their own technical reports. It has also conducted training with, among others, immigrant detention centre personnel, directors of the Penitentiary system, police officers, and public attorneys.

At the international level, the NPM Unit directive establishes that contact should be maintained with the UN Sub-Committee on Torture. In 2010, the NPM Unit work alongside the UNHCR on the issue of detention of migrants, including joint visitations and meetings with relevant authorities.

The innovation of an NPM may owe as much to Costa Rica’s regional standing as a human rights referent point as to domestic demand for such an entity. Costa Rica presents a relatively rights-respecting context in regional perspective. However, its regional “exceptionalism” should not be exaggerated (Lehoucq 2005).

A relatively stable and rights-protective setting does not diminish the importance of a functioning NPM.  The work of the Costa Rican Defensoría prior to and following designation reinforces this conclusion, highlighting compliance gaps between formal protections and actual practice, with particular attention on the protection of vulnerable groups, such as immigrants, prisoners in remand custody, the young, infirmed, elderly and women.

Notwithstanding resource constraints, the NPM Unit continues to develop and refine its operational mandate in light of best practice and lesson learnt. Indeed, its annual reports end with an reflexive overview of “lessons learnt,” including the advantage of unannounced visitations at night and weekends, the challenge of effective follow-up with authorities, the need for more logistical support, and sustaining cooperation with the Ministry of Government, Police and Public Security and the Judiciary.

[1] Katía Rodríguez, Special Protection Director in the Defensoría del los Habitantes, in interview with Thomas Pegram, 21 September 2007.

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