1. Introduction
1. On 29 May 2009, the Parliamentary Assembly decided
to refer to the Committee on Legal Affairs and Human Rights, for
one report, the two motions on “20th anniversary of the European
Committee against Torture: time to take stock” and “The need to
establish effective, independent national mechanisms for monitoring
places of detention”.
At its meeting on 23 June 2009, the committee
appointed me rapporteur.
2. At its meeting on 17 November 2010, the committee discussed
an introductory memorandum and decided on the more concise new title
of this report.
3. At its meeting on 27 January 2011, the committee held an exchange
of views with the following persons:
- Ms Silvia Casale, former Chairperson of the CPT and of
the United Nations Sub-Committee on the Prevention of Torture (United
Kingdom);
- Ms Renate Kicker, former Vice-Chairperson of the CPT,
Professor at the University of Graz, Austria;
- Mr Andres Lehtmets, former Vice-Chairperson of the CPT,
Psychiatrist (Estonia).
2. Recapitulation
of the purposes of this report
4. This report aims to achieve three main purposes:
- the first concerns the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT): To increase awareness of the CPT’s excellent
work and to make concrete proposals for further improvements, some
of which would require modifications of the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (“the convention”) and others not;
- the second relates to the Optional Protocol to the United
Nations Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (OPCAT): To promote the ratification of
the OPCAT by all Council of Europe member states and encourage them
to set up effective national mechanisms for monitoring places of
detention;
- the third purpose of this report is to explore means of
achieving the greatest possible synergy between the Council of Europe
and the United Nations mechanisms, in order to improve the situation
of detainees throughout Europe, in accordance with the principle
of subsidiarity: leaving the day-to-day responsibility for the protection
of detainees to the national protection mechanisms created under
the OPCAT, while relying on the experience and authority of the
CPT to ensure the spread of “best practices” and the application
of basic common European standards.
5. Where the CPT’s activities are concerned, reference should
be made to its website.
The
annual reports especially give an excellent overview. Document AS/Jur/Inf
(2011) 5, by the Committee on Legal Affairs and Human Rights, on
the main Council of Europe human rights mechanisms and institutions,
also provides a good survey. As to the OPCAT, the informative site
of the Office of the United Nations High Commissioner for Human Rights
gives
all necessary particulars.
3. Strengthening the
CPT
3.1. Improving the selection
procedures for CPT members
6. The Assembly has always supported the important work
of the CPT, whose success depends to a great extent on the professional
skills, experience and independence of its members. Under the 1987
European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (ETS No. 126), the Assembly participates
in the selection of the CPT’s members by submitting a proposal to
the Committee of Ministers based on the selection from shortlisted
candidates made by its Sub-Committee on Human Rights.
Resolution 1540 (2007) on
improving selection procedures for CPT members introduced some improvements in
the existing selection procedure.
7. But in order to further strengthen their legitimacy and independence,
the members of the CPT should be elected by the Assembly, after
a suitable interview procedure. Such a change would require the
convention to be amended. In light of the hearing with the experts,
I propose that the Assembly now take the initiative of such an amendment
to the convention.
8. Given the limited resources and time available to the Sub-Committee
on Human Rights, priority should be given to improving the selection
procedures at the national level. The recommendations in
Resolution 1540 (2007) on
improving selection procedures
for CPT members
should be
implemented more thoroughly and may need to be further strengthened.
9. For that purpose, the panel members who participated in the
hearing on 27 January 2011 suggested setting up a group of experts
with instructions to advise the national delegations on the quality
of the shortlisted candidates in relation to the needs of the CPT,
in line with the recent alteration of the procedure for electing judges
to the European Court of Human Rights. In my opinion, introducing
a new advisory body would needlessly encumber the election procedure.
Our efforts would be better centred on changing the entity responsible
for the election of the CPT’s members: as soon as we have achieved
the necessary amendment of the convention, the Sub-Committee on
Human Rights will itself be able to devote greater efforts to optimum selection
of the CPT’s members. Meanwhile, the Bureau of the CPT can freely
provide the sub-committee, informally, with information as to whether
the candidatures put forward by the national delegations match the current
needs of the CPT, and it is warmly invited to do so.
10. Given the efforts to improve the selection
procedures, it is worthwhile recalling
that the selection criteria should relate to the tasks to be performed
by the members of the CPT and to the qualifications needed for their performance.
10.1. Tasks of a CPT member:
- carrying out on-site inspections
in a challenging environment;
- talking with different types of detainees, such as suspected
and convicted criminals, psychiatric patients, foreigners detained
under the aliens legislation, elderly and/or disabled persons accommodated
in social care homes, etc.;
- working with interpreters and in a team composed of persons
of different nationalities and professional backgrounds;
- working long hours per day, sometimes including part of
the night, and usually for two weeks in a periodic visit with travelling
on an almost daily basis;
- contributing, at the end of each visit, to immediate feedback
to the authorities and providing detailed written notes as input
for the CPT’s report;
- in addition to on-site work, a CPT member needs to study
all the draft reports and to contribute to the discussions in the
three plenary sessions per year. CPT members are asked also to engage
in several internal working groups and the discussion of standards
and working methods.
10.2. Skills and qualities required of a CPT member:
10.3.
10.3.1. In addition to the
criteria laid down in the convention, the following skills and qualities are
crucial for carrying out the tasks of a CPT member as described
above:
10.3.2.
- relevant professional
knowledge;
- motivation to carry out a challenging task;
- negotiation skills in discussions with the authorities;
- ability to communicate; this means excellent command of
one of the Council of Europe official languages (English or French)
which enables the CPT member to work with an interpreter and to
draft notes and reports in this language. A good command of the second
Council of Europe official language is also required for communication
with other members and experts who work in this second language,
and to be able to read their notes. Knowledge of a further language
is of high value for the CPT;
- ability to work in a team;
- ability to bear the emotional strain of very demanding
situations;
- being in good health and, as far as possible, old enough
to be recognised as an authority exercising significant responsibilities
in the member states, but not too old to bear the bodily and mental
constraints of the mission;
- being available and ready to devote a lot of (partly unpaid)
time to the CPT’s work;
- being loyal to the CPT and discreet, so as to abide by
the principle of confidentiality.
10.3.3. This impressive catalogue of required skills and qualities
shows how important it is to ensure the best possible selection
process at the national level, excluding any politicisation whatsoever.
10.1. A specific need of the CPT is
for members with specialist medical expertise to detect signs of torture
and assess the quality of the medical services available to persons
in detention during visits to psychiatric hospitals and other medical
institutions.
3.2. Ensuring appropriate
follow-up to public statements of the CPT
11. The continued success of the CPT’s work also depends
on the political support it receives from the Council of Europe
and its member states.
12. A public statement may be made by the CPT if a state party
fails to co-operate or refuses to improve the situation in light
of the CPT’s recommendations.
The decision
on a public statement requires a majority of two thirds of its members
and a procedure whereby the state concerned is given the opportunity
to make its views known. A public statement is the ultimate means
of alerting the public that a state party is violating the legal obligation,
which it incurred under the convention, to co-operate with the CPT.
So far the CPT has issued five public statements vis-à-vis only
two states, Turkey and the Russian Federation.
However,
there are other states in respect of which the public statement
procedure has been opened in the past or currently. Practice has
shown that the threat of a public statement often motivates states
to engage more in dialogue with the CPT and to implement long-standing
recommendations. Once this threat has failed and a public statement
is finally made, it has often been revealed as a rather toothless
instrument – unless other Council of Europe bodies follow it up
properly by putting pressure on the state party concerned aimed
at the proper fulfilment of its duties under the convention.
13. The Assembly has already deplored the lack of follow-up so
far given by the Committee of Ministers to the CPT’s three public
statements concerning the situation in the Chechen Republic of the
Russian Federation. The CPT itself, in its 19th annual report published
on 20 October 2009,
deplores the fact that such statements are
not “at the very least” put on the agenda of the relevant Council
of Europe bodies.
14. Also in light of the experts’ comments on the matter, I propose
that the Assembly request the Committee of Ministers to react to
any public statement issued by the CPT by placing it on its agenda
and discussing the situation. This discussion could lead in particular
to the adoption of a resolution asking the state concerned to meet
its legal obligations under the European Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment and
to co-operate with the CPT.
15. Apart from the Committee of Ministers, the Assembly itself
and the Council of Europe’s Commissioner for Human Rights should
provide appropriate follow-up to public statements issued by the
CPT. The Assembly should be able to hold its own debate on the issues
raised by the public statements, and should consistently decide
to request the national delegation of the state concerned to raise
this issue in its national parliament in order to discuss the information
contained in the statement and report back to it within a certain
period of time. The Sub-Committee on Human Rights could play a special
role in this respect by inviting the leader of the national delegation
concerned by a public statement to an exchange of views with its
members. The Commissioner for Human Rights should also be requested
to acquaint himself with the action taken on the findings of the
CPT on the occasion of a visit to the state concerned.
3.3. Ensuring systematic
and timely publication of the CPT’s final reports
16. The convention stipulates that the information gathered
by the CPT in relation to a visit, its reports and its consultations
with the party concerned shall be confidential. This general rule
is modified by the provision that the committee shall publish its
report, together with any comments of the party concerned, whenever requested
to do so by that party. As of 26 August 2010, 241 CPT visit reports,
out of the 291 reports sent, have been authorised for publication.
These figures show that the great majority of states authorise (“request”)
the publication of the CPT reports, and lifting the confidentiality
of the reports has become the general practice. There is just one
state party that can be described as a persistent objector to this
practice: the Russian Federation. The other state party mentioned
in paragraph 5 of the first motion for a resolution, Azerbaijan, meanwhile
(in November 2009) authorised the publication of the December 2008
visit report, which is a positive development, though the delay
of almost one full year is unnecessarily long.
17. The automatic publication of a CPT visit report without requesting
the prior authorisation of the state concerned – also necessitating
an amendment to the convention – would bring the findings and recommendations
of the CPT into the public domain in good time, thus speeding up
the requisite public debate, consultation of all players concerned
and, so it is hoped, prompt remedial measures.
18. But, as the experts recalled at the hearing on 27 January
2011, the state party should be given the possibility of postponing
the publication of a CPT report for six months after the date of
its transmission to that state. In this way the state will not be
denied the possibility of reacting to and if possible correcting
the shortcomings noted by the CPT before the public is informed
of the CPT’s findings; the state can thus make public its position,
as well as measures already taken to remedy the deficiencies found,
at the same time.
19. Until the necessary amendment to the convention comes into
force, the parliamentarians should urge their respective governments
to call for the earliest possible publication of the reports under
the existing rules, as Belgium, Georgia, the Netherlands and several
Nordic countries do in an exemplary fashion.
20. It should be recalled that the final reports are only the
“tip of the iceberg” of the information available to the CPT and
of the correspondence with member states. Confidentiality of the
ongoing co-operation between the CPT and the competent authorities
is indeed indispensable for the CPT’s work and should therefore
not be called into question.
4. Promoting the implementation
of the Optional Protocol to the United Nations Convention against Torture
and other Cruel, Inhuman and Degrading Treatment or Punishment
4.1. Spurring all Council
of Europe member states to ratification
21. Since April 2009, when the second motion underlying
this report was drafted, the number of European states ratifying
the OPCAT has already increased. As of 4 October 2010, 28 of the
47 member states of the Council of Europe had ratified the OPCAT
and 21 had instituted national preventive mechanisms (NPMs) for monitoring
the situation of detainees, particularly by means of on-site visits.
The successful implementation of the strategy of creating synergies
and establishing closer co-operation and co-ordination between the
different levels of monitoring mechanisms will very much depend
on the existence of national mechanisms in all Council of Europe
member states. Those which have not already done so
should
be encouraged to ratify the OPCAT and establish national preventive
mechanisms.
4.2. Need to establish
effective national protection/prevention mechanisms (NPMs)
22. In line with the principle of subsidiarity, the bulk
of the work of protecting detainees from human rights abuses should
be carried out at the national level, and this requires effective
and independent national prevention mechanisms (NPMs).
24. It appears that problems arise when NPMs are set up within
the existing ombudsperson institutions. The NPMs’ role, which is
preventive by nature, is often new for the ombudsperson’s offices,
which have so far focused mainly on the handling (ex post) of complaints,
by staff who are mainly jurists. The challenge for such NPMs is
therefore to combine the reactive with the preventive role and incorporate
the necessary medical expertise. Certain arrangements may enhance
the effectiveness of the NPMs’ preventive activities. The NPM should
be established at the very least as a separate and independent unit
within the ombudsperson’s office. Staff assigned to this unit need
to be specially recruited/selected and trained to carry out on-site
monitoring. A clear concept needs to be developed of how the preventive
monitoring team reacts to and processes complaints which it receives
during inspections.
25. The work in connection with NPMs also benefits from a co-ordination
mechanism at the level of the Council of Europe. The European NPM
project
has led to the creation of an active
network of national preventive mechanisms and provides a forum for
pooling experience. By organising thematic workshops and on-site
visits, the project offers support in capacity building relating
to the preventive monitoring tasks of the NPMs. Experienced present
and past members and experts of the CPT and of the Sub-Committee
on Prevention of Torture set up under OPCAT are involved in these
activities, which provide a useful informal link between the protective/preventive
mechanisms operating at different levels.
26. At the hearing on 27 January 2011, the experts also suggested
setting up an advisory medical council which would be at the disposal
of the NPMs to provide the medical expertise sorely lacking in most
NPMs. Some committee members involved in the discussion were somewhat
sceptical considering the limited financial resources available
for the purpose.
4.3. Creating synergies
between the CPT and the OPCAT mechanisms and the future European Union
measures
27. The action of the well-established body that is the
CPT of the Council of Europe on the one hand and that of the mechanism
prescribed by the OPCAT on the other hand, once it is up and running
in all member states, should be co-ordinated in such a way that
it achieves the greatest combined impact in favour of the protection
of detainees throughout Europe, making the best possible use of
the invariably scarce resources.
28. The Sub-Committee on Prevention of Torture welcomes the CPT’s
involvement in the development of NPMs in Europe. The sub-committee
includes some NPMs in its (infrequent) on-site visits. The CPT should
be able to do likewise in order to share its know-how and its findings
with the NPMs, within the limits of their ability to preserve the
confidentiality of this information. As to the substantive standards,
the sub-committee intends to apply the pro
homine principle by relying on the regional standard
where more stringent (that is, in Europe, the acquis of
the CPT). This presupposes regular exchange of information, itself
also complicated by the principle of confidentiality applying to
the CPT’s work.
29. Creating synergies between the Sub-Committee on Prevention
of Torture and the CPT and promoting NPMs was the topic of the conference
held in Strasbourg on 6 November 2009 on “New partnerships for torture prevention
in Europe” with the participation of members of the CPT, of the
Sub-Committee on Prevention of Torture and of different European
NPMs. Our committee was represented by Mrs Marie-Louise Bemelmans-Videc
(The Netherlands, EPP/CD), who delivered a well-received keynote
speech. The proceedings of the conference were published in July
2010.
The
existence of separate torture prevention bodies mandated at the
national, European and United Nations levels raises certain significant
problems but also affords a unique opportunity for further increasing
the effectiveness of action to prevent ill-treatment in Europe.
The participation of representatives of both bodies, of Council
of Europe member states and of civil society in the conference were
the occasion for a rewarding exchange of experiences and ideas relating
to two main subjects of discussion: 1. promoting and assisting information
exchange between the prevention bodies and 2. ensuring the effective
implementation of the prevention bodies’ recommendations.
30. As regards the European Union, it would appear to be more
interested in the conditions of detention in its member states as
a major requirement for successful development of mutual judicial
assistance and mutual recognition of judicial rulings.
The
European Commissioner for Justice, Viviane Reding, announced at
a round table on 25 January 2011 on conditions of detention in the
European Union that in 2011 a Green Paper on the subject would be
presented. She distinctly referred in her address to the European
Convention on Human Rights, but clearly it should also be ensured
that what the CPT has achieved receives full consideration in the
future drafting of the European Union rules on conditions of detention.
In the interests of productive use of the scant resources available
for this task, it is important that the European Union’s future
activities in this field should generate synergies, not overlaps,
with the CPT.
5. Conclusions
31. The prime importance among fundamental rights of
the prohibition of torture and inhuman and degrading treatment (Article
3 of the European Convention on Human Rights) can only be emphasised,
and the CPT commended for its action of outstanding quality sustained
by over twenty years of faultless dedication. The CPT indubitably
constitutes one of the Council of Europe’s greatest successes.
32. To carry out their difficult task, the members of the CPT
must have established qualifications and unimpeachable personal
merits. The election of the CPT members by the Assembly would vest
them with enhanced democratic legitimacy and would have the outcome
that the candidates on the lists forwarded by the national delegations
would be evaluated in the same body as the one making the final
choice.
33. Meanwhile, it is expedient to improve further the procedures
for shortlisting at national level, in line with the indications
in
Resolution 1540 (2007).
34. The public statements which the CPT adopts by a two-thirds
majority in the event of a shortfall in co-operation by the authorities
of a state party are of very special importance due to their exceptional
character. These infrequent cries of alarm should, as a matter of
course, prompt a debate in the Committee of Ministers, the Parliamentary
Assembly and the national parliament concerned.
35. The principle of confidentiality should remain an asset to
the CPT’s close co-operation with the national authorities, especially
in highly sensitive situations. However, the tangible implementation
of the CPT’s recommendations calls for more transparency in order
that all players concerned contribute towards bettering the situation
of detainees. Virtually all states parties request publication of
the CPT report, together their comments thereon, after intervals
which vary but allow timely commencement of the public debate on
the problems noted and the ways to solve them. The Russian Federation
alone still shows reluctance to do so.
36. The Assembly regrets that the Protocol to the United Nations
Convention against Torture has not yet been ratified by all Council
of Europe member states, and that not all the member states which
have ratified it have as yet actuated the national preventive mechanisms
(NPMs) prescribed by that instrument.
37. NPMs constitute a major innovation in the direction of subsidiarity.
They should be fully independent and provided with adequate resources,
including the legal, medical and other expertise crucial to the
tasks of on-site prevention and monitoring.
38. The Assembly welcomes the efforts made within the Council
of Europe to create synergies between the CPT on the one hand and
the OPCAT-based mechanisms on the other, and to pool relevant experience.
39. A similar approach, avoiding overlaps and wastage of limited
resources, is also imperative in the links between the CPT and the
actions envisaged by the European Union to improve the conditions
of detention in the member states.
40. On the basis of these conclusions, in the draft resolution
and recommendation, I have put forward a number of precise appeals
to the Council of Europe member states, to the states parties to
the convention, to the CPT itself and to the Committee of Ministers
and the competent institutions of the European Union.