1. Introduction
1. This report arises from a motion
for a resolution tabled by Mr Cruchten and others on 14 October
2016. The motion referred to certain existing European standards
in this area, including the European Convention on Human Rights
(ETS No. 5, “the Convention”) and the 2014 Council of Europe Committee
of Ministers’ Declaration on business and human rights, as well
as the European Parliament’s 2016 vote in favour of strengthening
the existing European Union (EU) Regulation 1236/2005 on trade in
security equipment. It then noted that “some loopholes have still
not been addressed, particularly in relation to technical assistance
and training” and that civil society reports had found that “security
equipment with no practical use other than to inflict torture and
the death penalty is still being manufactured, marketed and sold
in some Council of Europe Member States”.
2. On this basis, the motion called on the Parliamentary Assembly
to “investigate and report on trade in security equipment in the
member States of the Council of Europe, and subsequently develop
appropriate rules to prevent the trade or brokering of equipment
which could facilitate torture and the application of the death penalty”.
3. The Committee on Legal Affairs and Human Rights appointed
me rapporteur at its meeting on 7 March 2017. During the preparation
of the report, the committee held a hearing with Dr Michael Crowley,
Research Associate at the Omega Research Foundation, and Mr Albert
Straver, Administrator in charge of Foreign Policy-related Regulatory
Instruments, Service for Foreign Policy Instruments, European Commission,
at its meeting in Belgrade on 18 May 2017. I also sent a questionnaire
to the parliaments of member and observer States seeking information
on the national situation with respect to the trade in goods used
for torture and the death penalty and regulation of that trade,
to which I received twelve responses, from Andorra, Azerbaijan, Cyprus,
the Czech Republic, France, Germany, Luxembourg, Norway, Poland,
Spain, Sweden and Switzerland.
2. Past international activities and existing
international standards on regulation of trade in goods used for
torture and the death penalty
4. The absolute prohibition of
torture and inhuman or degrading treatment or punishment in all circumstances
is a peremptory norm of international law, incorporated into numerous
treaties, including Article 3 of the European Convention on Human
Rights, Article 7 of the International Covenant on Civil and Political
Rights and the United Nations Convention Against Torture. This prohibition
is so strict as to require States to take into account consequences
of their actions that may occur in other countries, notably by preventing
the removal of a person to a country in which they are at real risk
of exposure to sufficiently serious ill-treatment.
5. The death penalty is now unlawful in all Council of Europe
member States. Protocol No. 6 to the European Convention on Human
Rights (ETS No. 114), which abolishes the death penalty in peacetime,
has been ratified by all member States except the Russian Federation,
whose Constitutional Court has nevertheless instituted a moratorium;
and Protocol No. 13 to the European Convention on Human Rights (ETS No.
187), which abolishes the death penalty in all circumstances, has
been ratified by all member States except Armenia, Azerbaijan and
the Russian Federation. Recognising and building on this progress,
in 2010, the European Court of Human Rights ruled that the death
penalty amounted to inhuman or degrading treatment and thus fell
within the prohibition set out in Article 3 of the Convention.
6. In its Resolution 2001/62, the United Nations Commission on
Human Rights called on “all Governments to take appropriate effective
legislative, administrative, judicial or other measures to prevent
and prohibit the production, trade, export and use of equipment
which is specifically designed to inflict torture or other cruel, inhuman
or degrading treatment” and requested the Special Rapporteur on
torture “to study the situation of trade and production in such
equipment, its origin, destination and forms, with a view to finding
the best ways to prohibit such trade and production and combat its
proliferation, and to report thereon to the Commission”. This call
was reiterated in Resolution 2002/38.
7. In response, in 2003 the UN Special Rapporteur on torture,
Mr Theo van Boven, submitted a “Study on the situation of trade
in and production of equipment which is specifically designed to
inflict torture or other cruel, inhuman or degrading treatment,
its origin, destination and forms” to the UN Commission on Human Rights.
This study noted that “international
human rights law has up to now mainly addressed the question of the
circumstances in which such equipment can be used… [T]he Special
Rapporteur notes with appreciation a number of initiatives taken
at the national and regional levels to prevent the trade and production
in equipment specifically designed to inflict torture or other cruel,
inhuman or degrading treatment … [T]he Special Rapporteur reminds
States parties to the [UN] Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment of its article
2 which provides that ‘each State party shall take effective legislative,
administrative, judicial or other measures to prevent acts of torture
in any territory under its jurisdiction’. He believes that the enactment
of legal and other measures to stop the production and trade of equipment
specifically designed to inflict torture or other cruel, inhuman
or degrading treatment is part of this obligation of a general nature
to prevent acts of torture”.
8. I share the Special Rapporteur’s view and consider that on
the basis of their existing legal obligations, Council of Europe
member States are required to take effective measures to prevent
activity within their jurisdictions that might contribute to or
facilitate capital punishment, torture and inhuman or degrading treatment
or punishment in other countries, including by effectively regulating
the trade in goods that may be used for such purposes. The question
is therefore how this can best be achieved.
9. The Special Rapporteur’s subsequent report to the 2005 Session
of the Commission on Human Rights concluded with the following recommendations
to States:
- to designate and prohibit the manufacture, transfer and
use of certain forms of equipment “specifically designed for” or
which “has no or virtually no, practical use other than for the
purpose of” torture, whose use is inherently cruel, inhuman or degrading;
- to introduce strict controls on the export of other security
and law-enforcement equipment to help ensure that it is not used
to inflict torture or ill-treatment;
- to suspend the manufacture, transfer and use of equipment
whose medical effects are not fully known or whose use in practice
has revealed a substantial risk of abuse or unwarranted injury,
pending the outcome of a rigorous and independent inquiry into its
use;
- to monitor research and development of security and law-enforcement
technologies;
- to collect and disseminate disaggregated data on the manufacture
and trade of security and law-enforcement equipment;
- to consider the development of an international regulatory
mechanism;
- to ensure that the transfer of expertise to, and/or training
of, military, security and police personnel of another country do
not involve the transfer of skills, knowledge or techniques likely
to lend themselves to torture in the recipient country;
- to introduce legislation to control and monitor the activities
of private providers of military, security and police services to
ensure that they do not facilitate or perpetrate torture.
10. Since then, considerable progress has been made at European
Union level towards effective regulation of the trade in goods used
for torture and the death penalty. In 2005, the European Council
adopted Regulation No. 1236/2005 concerning trade in certain goods
which could be used for capital punishment, torture or other cruel,
inhuman or degrading treatment or punishment. The European Commission
has twice, in 2011 and 2014, updated and extended the annexes to
this regulation that list prohibited and controlled goods (see below).
In 2016, the European Council and the European Parliament amended
the 2005 regulation more extensively.
11. The European Union regulation distinguishes between two different
categories of items whose trade should be regulated. Annex II lists
equipment and products with no other practical use than capital
punishment, torture or other cruel, inhuman or degrading treatment;
this category of goods is banned from trade and any technical assistance
related to them is equally prohibited. It currently includes detailed
lists of items under the following headings:
- goods designed for the execution of human beings, and
certain of their components;
- goods which are not suitable for use by law-enforcement
authorities to restrain human beings;
- portable devices which are not suitable for use by law-enforcement
authorities for the purpose of riot control or self-protection;
- certain types of whips.
12. Annex III lists goods that have been designed for other purposes
(especially for law enforcement), but could be used for torture
and ill-treatment; this category is subject to trade controls, requiring
authorisation, on a case-by-case basis, by national authorities.
It currently includes detailed lists of items under the following headings:
- goods designed for restraining
human beings;
- weapons and devices designed for the purpose of riot control
or self-protection;
- weapons and equipment disseminating incapacitating or
irritating chemical substances for the purpose of riot control or
self-protection and certain related substances;
- products which could be used for the execution of human
beings by means of lethal injection;
- components for goods designed for the execution of human
beings.
Finally, Annex III.a lists
products which could be used for the execution of human beings by
means of lethal injection.
13. The Regulation requires Member
States to put in place “effective, proportionate and dissuasive” penalties
for breaches of the Regulation. It also imposes information obligations
on the competent authorities, which have to notify all other member
States' authorities and the Commission when they refuse to issue
an authorisation; and on the member States, which are required to
publish an annual activity report concerning the number of applications
received, the goods and countries concerned, and the decisions taken
on these applications.
14. The 2016 revision of Regulation 1236/2005 introduced several
significant new provisions. Transit of Annex II goods through EU
member States is prohibited and transit of Annex III goods prohibited
when the party executing the transit knows that any part of a shipment
of such goods is intended to be used for torture or other cruel,
inhuman or degrading treatment or punishment or for capital punishment
in a third country. Brokering of Annex II goods is prohibited, regardless
of the origin of the goods, and authorisation is required for brokering
of Annex III goods. Supplying technical assistance related to Annex
II goods to a customer in a third country is prohibited, as is accepting
technical assistance related to such goods from a supplier in a
third country. Suppliers of technical assistance and brokers are
prohibited from supplying or offering training in the use of Annex
II goods to parties in third countries. It is prohibited to display
or offer for sale Annex II goods in an exhibition or fair taking
place in the European Union and EU-based individuals or companies
are prohibited from selling or purchasing advertising in print or
on the internet, television or radio relating to Annex II goods. It
also established a license authorisation process for Annex III.a goods (specifically certain anaesthetic agents)
to ensure they would not be transferred for use in lethal injections,
without curtailing or delaying their transfer for legitimate medical
purposes.
15. The revised Regulation also established important new information
and implementation mechanisms. Information sharing between EU member
States is particularly important in the context of decisions on applications
for authorisations of exports of Annex III goods, as States have
since the introduction of the regulation in 2005 been required to
take into account “in particular whether an application in respect
of an essentially identical export has been dismissed by another
Member State in the preceding three years”. In addition to the existing
requirement on member States to “make a public, annual activity
report” on regulation-related activities, the European Commission
is now required to prepare its own annual report comprised of the national
reports, to be made publicly available. The Commission is also required
to review the implementation of the Regulation by 31 July 2020,
and every five years thereafter, and present a “comprehensive implementation
and impact assessment report to the European Parliament and to the
Council, which may include proposals for its amendment”. Finally,
a new “Anti-Torture Coordination Group” was established to “examine
any questions concerning the application of this Regulation”; the
Commission shall submit an annual report in writing to the European
Parliament on the Group’s activities.
16. The 2011 United Nations Guiding Principles on Business and
Human Rights contain provisions relevant to regulation of the trade
in goods used for torture and the death penalty. In particular,
Principle 2 urges States to set out clearly the expectation that
businesses domiciled in their territory and/or jurisdiction respect
human rights throughout their operations, and Principle 3 calls
on States to enforce laws requiring businesses to respect human
rights. Principle 7 notes that because the risk of human rights
abuses is heightened in conflict-affected areas, States should help
ensure that businesses operating in those contexts are not involved
in such abuses. Principle 17, directed at businesses themselves,
recommends that they conduct “human rights due diligence” covering
adverse human rights impacts which may be linked directly to their
operations, products or services by their business relationships.
The commentary on this provision notes that “[q]uestions of complicity may
arise when a business enterprise contributes to … adverse human
rights impacts caused by other parties … [M]ost national jurisdictions
prohibit complicity in the commission of a crime, and a number allow
for criminal liability of business enterprises in such cases … The
weight of international criminal law jurisprudence indicates that
the relevant standard for aiding and abetting is knowingly providing
practical assistance or encouragement that has a substantial effect
on the commission of a crime”.
17. The 2016 Council of Europe Committee of Ministers’ Recommendation
to member States on human rights and business, intended to contribute
to the effective implementation of the UN Guiding Principles at European
level, contains detailed recommendations in the appendix.
Paragraph 24 states that “member States
should ensure that business enterprises domiciled within their jurisdiction
do not trade in goods which have no practical use other than for
the purpose of capital punishment, torture, or other cruel, inhuman
or degrading treatment or punishment”. Other provisions are also
of interest, such as paragraph 27, which states that “member States
should be in a position to inform business enterprises … on the
potential human rights consequences of carrying out operations in
… sectors or areas that involve a high risk of negative impact on human
rights [and] should facilitate business enterprises’ adherence to
sector-specific standards, such as … the International Code of conduct
for Private Security Providers”. There are also provisions addressing
the authorities’ role in ensuring human rights due diligence by
businesses, especially those whose exports are subject to government
licence (paragraphs 20, 22 and 28).
3. Trade
in security equipment in the member States of the Council of Europe
18. As noted above, one of the
aims set out in the original motion is to “investigate and report
on trade in security equipment in the member States of the Council
of Europe”.
19. The 2005 report of the UN Special Rapporteur on Torture included
measurements of global trade, by region. These indicate that between
2000-2004, eastern European and “western European and other”
states were
home to 18 out of 20 manufacturers of “leg irons” in the world;
255 out of 413 manufacturers, brokers and distributors of electro-shock
weapons and 15 out of 56 manufacturers of such weapons; and 36 out
of 54 manufacturers of chemical irritants and chemical irritant
devices.
20. More recent information can be found in the reports of the
Omega Research Foundation/Amnesty International, including details
provided by Dr Michael Crowley, Research Associate at the Omega
Research Foundation, during the committee hearing on 18 May 2017.
I am disappointed and concerned to see that these reports reveal
commercial activity in relation not only to goods regulated under
Annex III of the EU Regulation but also goods prohibited under Annex
II of the EU Regulation.
21. Thumbcuffs have been listed in Annex II of the EU Regulation
since the Annexes were amended in 2014. Nevertheless, thumbcuffs
have been promoted at trade fairs in France (Milipol, November 2015),
including products marketed by French companies Le Protecteur-Scorpion-ATAM
and Welkit, and Germany (IWA Outdoor Classics Event, Nuremburg,
March 2015).
22. Spiked batons and spiked shields have both been listed in
Annex II of the EU Regulation since 2014. Again, such items were
exhibited at Milipol 2015 in France. One Chinese firm even displayed
a sample spiked shield on its stand, despite the import of such
items into the EU being prohibited.
Amnesty
International observers at Milipol 2017 found that once again a
Chinese firm was promoting spiked batons, a spiked arm-guard and
similar products;
after
Amnesty brought this to the attention of the Milipol organisers,
the stand in question was closed.
23. Weighted restraints have also been listed in Annex II of the
EU Regulation since 2014. Again, Chinese firms exhibited such products
at Milipol 2015 and 2017. German company Clemen & Jung produces
a handcuff weighing 1 380g.
Cuffs for anchoring to a wall,
floor or ceiling have also been listed in Annex II since 2014. The
website of Czech company ALFA – PROJ spol. s.r.o. promotes an item
capable of such use, although the description of this item as being
intended “to confine persons in detention” was removed following
inquiries by the Omega Research Foundation and Amnesty International.
Clemen
& Jung also produces a “heavy cuff with anchor”, weighing over
1kg, apparently designed for attachment to a fixed object; this
product was promoted at the IWA Outdoor Classics Event 2015.
Both
of the aforementioned Clemen & Jung handcuffs now appear on
the company’s website as “phantasie cuffs”, although they appear
quite robust enough for use (or abuse) by police or security forces.
A Russian company has manufactured and promoted a single handcuff allowing
a prisoner to be “safely chained to the wall”, as well as bracelets
allowing a group of up to five prisoners to be attached to a “fixed
support”.
24. Body worn electric shock devices (including belts, vests and
cuffs) activated by remote control appear in Annex II of the EU
Regulation since 2014. The CPT “has made clear its opposition to
the use of equipment of this kind for controlling the movements
of detained persons, whether inside or outside places of deprivation of
liberty. Such equipment is, in the Committee’s opinion, inherently
degrading for the person to whom it is applied, and the scope for
misuse is particularly high. Alternative means of ensuring security
during the movements of detained persons can and should be found”.
Nevertheless,
German company PKI Electronic Intelligence GmBH advertises on its
website stun cuffs – that can deliver a 60 000V shock by remote
control from up to 300m away (with the slogan “You never saw an
escaping person stop so quickly!”). In correspondence with Omega
Research Foundation and Amnesty International, PKI had twice previously denied
manufacturing or selling this device.
“Electronic
shackles” produced by a Chinese company were promoted at Milipol
2015 in France.
25. Cage or net beds are prohibited under the EU Regulation since
2014. Two Czech companies, Audy s.r.o. and Laboratorni a zdravotnkická
technika OPTING servis, were still marketing such items until early
2015.
This
is of particular concern as in its 2015 report on the Czech Republic,
the CPT recalled having “repeatedly expressed its serious misgivings
about the use of net beds” in that country.
26. Electric shock batons and shields and stun guns are regulated
under Annex III of the EU Regulation since 2014. The CPT has expressed
“strong reservations” about the use of such direct contact weapons,
which cause “very intense, localised pain, with the possibility
of burns to the skin”.
They
are or have been produced and/or marketed by firms based in a number
of Council of Europe member States, including Bosnia and Herzegovina
and Poland (Eltraf Bis HPE Polska)
–
in the latter case promoting its products at a trade fair in the
United Arab Emirates –, France (Magforce International, GK Professional
and Dépot SD Équipements),
Russia (March Group, which
markets its products domestically and in countries including Iran, Saudi
Arabia and Uzbekistan),
the Czech Republic (Euro Security
Products), Portugal (Inventarium Security, Research and Development)
and Slovenia (GER d.o.o.).
27. Certain chemical irritants are also listed in Annex III since
2014. The European Court of Human Rights has stated that “the unwarranted
use of tear gas by law-enforcement officers is not compatible with
the prohibition of ill-treatment.”
The CPT has stated of pepper spray, for
example, that “this potentially dangerous substance should not be
used in confined spaces. Further, if exceptionally it needs to be
used in open spaces, there should be clearly defined safeguards
in place … Pepper spray should never be deployed against an inmate
who has already been brought under control. Further, it should not
form part of the standard equipment of a prison officer”.
Companies in many Council of
Europe member States produce such items: for example, in France,
SAE Alsetex produces a range of products including chemical irritant
grenades and back-pack style sprayers, whose use has been documented
in countries such as Côte d’Ivoire, the Democratic Republic of Congo
and Bahrain;
and a Turkish company produces
unmanned aerial vehicles with a 5km range and 30 minutes’ autonomy
capable of dropping up to nine tear-gas projectiles onto groups
of persons below.
28. Acoustic devices are not regulated but also raise human rights
concerns relating to their effects and possible abuse, as they may
be capable of generating sound levels above the thresholds for pain
and potential hearing damage. European companies produce and/or
promote such items (including Hugin Group International & PKI
Electronic Intelligence GmBH in Germany), and they have been promoted
at European trade fairs (e.g. items produced by the Israeli company
Tar Ideal, at the Eurosatory 2014 exhibition in France).
Another technology of potential concern
is the “millimetre wave weapon”, designed to project electro-magnetic
radiation at specific wavelengths so as to cause discomfort or pain
to the targets by heating the skin, but which may cause serious
burns through overexposure. These have in the past been marketed
by AT-Marine Oy of Finland.
29. Hoods, including spit hoods and those that may be attached
to handcuffs, appear in Annex III of EU Regulation since 2014. The
European Court of Human Rights has ruled that blindfolding a prisoner
may constitute cruel or inhuman treatment when combined with certain
other interrogation techniques
or even torture when used
with certain other techniques;
the CPT has found that
blindfolding “will frequently amount to psychological ill-treatment”
and should be abolished,
and has called for the
prohibition of blindfolding or hooding of prisoners in police custody,
including during interviews.
Despite these
long-standing concerns of the Court and the CPT, as recently as
2011 a Chinese firm was promoting an opaque hood attached to handcuffs
at Milipol 2011 in France.
30. The EU Regulation also covers provision of technical assistance,
including training, although this is regulated (prohibited) only
in relation to Annex II goods. In my view, European companies should
also be regulated in the type of training they provide to security
and police forces in third countries. For example, the Czech company
Euro Security Products, which trades amongst other things in electric
shock devices, pepper spray, restraints and batons, trains police
and security forces in their use. Photographs on the company’s website
of previous courses in countries with poor human rights records,
including China, the Democratic Republic of Congo, India, Togo and
Uganda, show training in the use of techniques such as “hog-tying” (restraint
into a hyper-extended position) and use of batons in neck-holds.
31. As noted above, the Regulation requires EU member States to
make a “public, annual activity report, providing information on
the number of applications received, on the goods and countries
concerned by these applications, and on the decisions they have
taken on these applications”. According to research conducted by Liege
University, “no such report has been published so far … [although]
several Member States publish their statistics as concerns transactions
[covered by the Regulation]”.
The
Liege University report mentions the United Kingdom’s publication
of statistics. My own research and information from Omega ResearchFoundation shows
that, to varying extents, also Bulgaria, the Czech Republic, Germany,
Hungary, Ireland, Lithuania, Romania, Slovenia, Spain and Sweden
have published some form of report, or at least statistics – although few
of them have done so fully or systematically. Given the number of
EU member States that are involved in the production or promotion
of Annex III goods, this is a matter of concern and undermines the
transparency that the regulatory regime is supposed to ensure. The
first annual compilation report that the European Commission is
required to prepare following the 2016 revision is expected to be
published next year.
4. Developing
appropriate rules to prevent the trade or brokering of equipment
which could facilitate torture and the application of the death
penalty
32. The most obvious issue in relation
to regulation is that the EU regulations apply only to the EU member States.
As can be seen from the foregoing, these are not the only Council
of Europe member States to be involved in some way in this trade.
The most relevant regulatory standards that do apply to all Council
of Europe member States are non-binding and substantively inadequate:
the United Nations Guiding Principles on Business and Human Rights
do not specifically mention this issue; and the one specific provision
of the Committee of Ministers Recommendation on human rights and
business covers only trade in goods that can only be used for prohibited
purposes, and not goods that could be abused for such purposes.
33. Effective regulation of the trade by non-EU member States
of the Council of Europe in goods used for torture and the death
penalty thus depends on domestic provisions with little guidance
from a detailed international framework of standards.
34. In addition, the EU Regulation, although representing the
state of the art in the matter, will always leave room for improvement,
whether through updating in response to new developments, such as
new forms of goods or new methods of trade, or to cover possible
lacunae such as provision of technical assistance and training in
relation to Annex III goods in certain circumstances.
5. The
Global Alliance to end trade in goods used for capital punishment
and torture
35. On 18 September 2017, the EU,
Argentina and Mongolia launched the Global Alliance to end trade
in goods used for capital punishment and torture at a special event
on the occasion of the United Nations General Assembly in New York.
The 58 participants in the Alliance adopted a political declaration
at the launch event, including 41 Council of Europe member States.
The adopting states, having acknowledged that “the availability of
goods used for capital punishment, torture and other cruel, inhuman
or degrading treatment or punishment enables such practices”, then
resolved to “act together to further prevent, restrict and end trade”,
to “take effective measures, inter alia through
legislation and effective enforcement where appropriate, for the restriction
of the trade”, to “strengthen co-operation in this area and to form
a global network of Focal Points for the sharing of information
and best practices”, and “to make available technical assistance
for the design and implementation of relevant legislation”.
36. I can only welcome this initiative, which has been supported
by the great majority of Council of Europe member States, along
with 16 others, including Council of Europe observer States Canada
and Mexico. I strongly encourage all other Council of Europe member
States, observer States and States whose parliaments enjoy partner
for democracy status with the Parliamentary Assembly, to sign up
to the declaration of the Global Alliance and, along with the current
signatories, to fully apply its provisions.
6. Conclusions
and recommendations
37. Much progress has been achieved
in Europe in relation to the concerns expressed in the United Nations by
the Commission for Human Rights and the Special Rapporteur on Torture
during the early years of the millennium. It is clear, however,
that much remains to be done, including to clarify the overall situation
at Council of Europe level. The Global Alliance, whose declaration
has been adopted by most Council of Europe member States, is an
important political initiative, but it will require detailed technical
measures to be taken at national level if it is to have real practical
effect: the provisions on legislation, enforcement mechanisms, international
co-operation and mutual technical assistance are fundamental to
this.
38. For those European Union member States that are already bound
by the “gold standard” of Regulation 1236/2005, it is a matter of
concern to see that activities concerning the production, marketing
and promotion of Annex III regulated and even Annex II prohibited
goods have continued, even after the scope of the regulation was
extended in 2014 and its provisions revised in 2016. Information
deficits are evident both at national level, as shown by the Czech
and Polish responses to the questionnaire which showed apparent ignorance
of the activities of certain companies located in those countries,
and at European level, given most EU member States’ apparent failure
to publish the reports required under Article 13 of the Regulation.
The “gold standard” of the EU regulatory regime will not reach its
full potential until national authorities are fully informed of
the activities of companies within their jurisdictions and the European
Commission is fully informed of the regulatory activity of national
authorities.
39. The situation with respect to non-EU member States of the
Council of Europe is, of course, of potentially far greater concern.
Of the responses to the questionnaire that I received from non-EU
member States, both Azerbaijan and Norway indicated that their national
legislation did not directly address the regulation of trade in
goods used for the death penalty or torture (neither Andorra nor
Switzerland answered this question). Unfortunately this means that
I am not in a position to comment on the existence or quality of
regulation in other countries. I see no reason, however, why all
of these States should not follow the approach taken by the EU Regulation,
whether by adopting new legislation or amending that which is already
in force, as appropriate. Since information sharing and technical
co-operation, which are fundamental parts of any international regulatory
mechanism, depend on normative and procedural compatibility, it
is important to harmonise all Council of Europe member States’ regulatory
systems. This could be facilitated by those States joining the Global
Alliance and making full use of the co-operation and assistance
mechanisms set out in its declaration.
40. As a global pioneer in the abolition of the death penalty
and enforcement of the prohibition on torture, I consider that the
Council of Europe as a whole should play a leading role in this
field, both politically and technically. This could be done by supporting
the Global Alliance, co-operating with the EU on its implementation
in Council of Europe member States and providing technical assistance
to those member States that seek it. Ideally, such technical assistance
would be based on a Committee of Ministers’ recommendation to member
States setting out guidance on how to establish and implement an
effective regulatory regime in effect extending the scope of the
approach taken by Regulation 1236/2005 through harmonised national
systems in non-EU member States.
41. My detailed proposals to these ends are set out in the draft
recommendation.