How independent can National Preventive Mechanisms be under the Optional Protocol to the Convention against Torture?

The Optional Protocol to the Convention against Torture (OPCAT) gives States the obligation to create a National Preventive Mechanism (hereafter: NPM or mechanism), which monitors all places of deprivation of liberty. The aim is to prevent torture proactively and improve detention conditions where necessary. NPMs achieve this through regular monitoring visits and recommendations addressed to detention places and State authorities. OPCAT stresses the obligation of independence for NPMs. While independence is important to allow for an objective and truthful assessment of detention, this requirement is challenging. NPMs depend on the State for their resources and access to all places, while simultaneously the State is responsible for implementing the NPM's recommendations. NPM members need to develop constructive working relationships with State authorities and others to achieve implementation of their recommendations, thereby creating tension between independence and effectiveness.
This dissertation challenges the original notion of independence as a panacea for achieving effectiveness. Regulatory capture theory provides an understanding of the processes at play when independent experts lose their objectiveness and develop too close relationships with others, impeding their independent mandate. The thesis applies regulatory capture to the OPCAT context and shows how NPM members may be captured by the State or civil society. Based on this, three components of independence are developed into a framework that enables NPMs to work both independently and effectively.
Both the insights from regulatory capture and the independence framework are tested in three case studies: The NPMs in Albania, Austria and the Netherlands. All three cases show signs that NPMs are at risk of capture, or have been captured, for example by a Ministry. The analysis highlights what both States and NPMs can do to achieve NPM independence. While full independence may not be feasible, this dissertation offers guidance on how to balance independence and effectiveness and conduct torture prevention that protects people deprived of their liberty.