C Explanatory memorandum
by Mr Jordi Xuclà, rapporteur
1 Introduction
1.1 Procedure
1. On 27 November 2015, the Bureau
of the Parliamentary Assembly referred the motion for a resolution on
“25 years of the CPT, achievements and improvements needed” to the
Committee on Legal Affairs and Human Rights for report. At its meeting
on 26 January 2016, the committee appointed me as rapporteur. On 13
October 2016, the committee held a hearing with the participation
of Mr Lətif H. Hüseynov, former President of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT), and Mr Trevor Stevens, former Executive Secretary
of the CPT. It subsequently held an exchange of views with the President
of the CPT, Mr Mykola Gnatovskyy, on 13 December 2016.
1.2 Issues
at stake
2. The prohibition of torture
and inhuman and degrading treatment (Article 3 of the European Convention on
Human Rights (ETS No. 5, “the Convention”) is a fundamental, non-derogable,
right of paramount importance. Over the past 25 years, the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment has done outstanding work in assessing how
those deprived of their liberty are treated. In
Resolution 1808 (2011) on strengthening torture prevention mechanisms in Europe,
the Assembly recognised the CPT as one of the greatest successes
of the Council of Europe.
3. More than 25 years after the CPT started its work, it is important
to take stock of its achievements and propose, if need be, possible
improvements in order to ensure that member States live up to the
obligations they undertook upon ratifying the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (ETS No. 126, “the CPT Convention”) so that justice
does not stop at the prison gate.
1.3 Previous
work by the Assembly
4. The Assembly greatly values
the work of the CPT and has on numerous occasions stressed the high importance
it attaches to its work. The Assembly has consistently underlined
the necessity to preserve the CPT’s effectiveness and credibility.
To that end, a solid amount of work and a number of proposals for improvements
have been put forward by the Assembly over the last 20 years.
5. Back in 1997, the Assembly called for the strengthening of
the CPT in its
Recommendation
1323 (1997) on strengthening the machinery of the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment. At that time, the Assembly was concerned about the
need for increased human and budgetary resources for the CPT to
cope with the ratification of the CPT Convention by an increasing
number of States from central and eastern Europe who had recently
joined or were about to join the Council of Europe. At the same
time, the Assembly was already pointing out the need to improve
the election procedure of the CPT members to ensure a more balanced
composition with regard to professional background, gender and age.
In its
Order 530 (1997), the Assembly therefore decided “to pay particular attention
to the criteria of professional background, gender and age, in order
to ensure a more balanced composition of the committee and, in particular,
a greater participation of prison specialists and forensic scientists,
as well as an increased number of women among its members”.
6. In its
Resolution
1248 (2001) “European Committee for the Prevention of Torture (CPT):
composition of the Committee”, the Assembly was worried about the
fact that the composition of the CPT was not balanced “either from
the point of view of the representation of women, or from that of
the different professional backgrounds required of its members”.
This resolution was a first step towards making the role of the
Assembly more instrumental in the selection procedure for CPT members.
7. As a next step, the Assembly adopted
Resolution 1540 (2007) on improving selection procedures for CPT members, underlining
that the CPT’s authority depends on “the moral standing, professional
qualifications and personal implications of all its members”. The
Assembly identified ways and means of improving the selection procedure
of the CPT members so as to ensure that it recommends the most suitable
candidates to the Committee of Ministers, which, in turn, elects
the CPT members. Most of the recommendations put forward by the
Assembly in this resolution, for example giving succinct reasons
for its recommendations, or inviting the heads of national delegations
to the meetings of the Sub-Committee on Human Rights in charge of
examining the lists of candidates, are now usual practice. Some,
however, have not been enforced until now, for example interviewing
candidates on a case-by-case basis.
8. The Assembly also adopted
Resolution 1808 (2011) and
Recommendation
1968 (2011) on strengthening torture prevention mechanisms in Europe
in which it,
inter alia: recommended
making the procedures for selecting candidates to the CPT more transparent
and better suited to the needs of the CPT; called on the States
Parties to the CPT Convention concerned to appeal to their governments
with regard to the public statements adopted by the CPT under Article
10 of the convention in case of insufficient co-operation or refusal
to improve matters in the light of the CPT’s recommendations; and
called for the amendment of the CPT Convention to permit the election
of CPT members by the Parliamentary Assembly as well as the automatic
publication of the CPT reports.
1.4 The
evolution of the CPT in the last 25 years: achievements and improvement
needed
9. In its last report on this
subject,
Note the
Committee on Legal Affairs and Human Rights stressed that the prohibition
of torture and inhuman and degrading treatment (Article 3 of the
European Convention on Human Rights (ETS No. 5)) is of vital importance.
It also commended the CPT for the quality of the work it had undertaken
for over twenty years. Five years later, and more than 25 years
after the CPT started its work, I believe it is time to assess what
has been achieved in the meantime and where there is room for improvement.
10. The work of the CPT is of crucial importance and, no matter
how much progress may be achieved on eradicating torture and inhuman
or degrading treatment, its work will never be finished. As Trevor
Stevens, the former Executive Secretary of the CPT, rightly put
it at a hearing before the committee, “the absolute prohibition of
torture and inhuman or degrading treatment or punishment is – and
will remain – a fragile commodity. Whatever else the CPT may have
achieved, it has not succeeded in eradicating torture and other
forms of deliberate ill-treatment from the European continent; and
most likely, neither the Committee nor any other body will ever
achieve that objective”.
11. Nevertheless, the achievements of the CPT are immense:
Note
- the incidence of torture and
other forms of deliberate ill-treatment has been lowered in some
countries where it was found to be a significant problem;
- as a result of CPT’s findings, action has been taken against
persons responsible for ill-treatment;
- safeguards against ill-treatment have been introduced
or reinforced following the CPT’s recommendations;
- the selection and training of police, prisons and health-care
staff have been improved;
- the CPT’s findings are regularly and widely relied upon
by the European Court of Human Rights.
12. Indeed, if proof is needed of the relevance of the CPT, one
need only look at the case law of the European Court of Human Rights.
To mention but one example, in its pilot judgment
Neshkov and Others v. Bulgaria,
Note the Court referred
to the CPT almost 100 times!
Note
2 Ensuring
the best possible composition of the CPT
2.1 CPT
members: high professional qualifications
13. The success of the CPT undoubtedly
depends on the professional skills, experience and independence of
its members. Given the difficult character of the task performed
by CPT members, they must possess not only high professional qualifications
but also other qualities such as discretion, loyalty and the capacity
to cope with physically and emotionally demanding situations. The
report on “Improving selection procedures for CPT members” (
Doc. 11182) by our former colleague Mr Erol Aslan Cebeci considered
ways of guaranteeing the CPT’s authority by ensuring that CPT members
demonstrate the highest moral standing, professional expertise and
personal commitment. In the latest relevant report prepared by our
committee, entitled “Strengthening torture prevention mechanisms
in Europe” (
Doc. 12551), the rapporteur, our former colleague Mr Jean-Charles Gardetto,
supplemented the previous report by providing lists of the tasks
to be performed by CPT members as well as of the skills and qualities
required of them. Both lists are quite lengthy and impressive, and
illustrate the very demanding nature of the work. It is of utmost
importance that the member States, and the potential candidates,
and also our Assembly and the Committee of Ministers are aware of
these requirements and I have therefore decided to repeat them in
my report:
- 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.
Skills and qualities required of
a CPT member:
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:
- 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.”
14. To sum up, it is crucial that
CPT members are not only highly qualified but are also, once elected, available
to carry out their duties effectively. Candidates should therefore
be able to dedicate sufficient time to prepare for and participate
in CPT visits and plenary meetings, and be able to participate in
the drafting of visit reports and possibly in working groups within
the committee. In practical terms, this requires availability for
a minimum of approximately 40 days a year. It should also be borne
in mind that members of the committee may also be asked to participate
in urgent visits organised at short notice.
15. As CPT work implies participating in potentially long and
demanding visits in sometimes challenging environments, it is equally
important that candidates have the mental and physical capacity
to contribute to CPT activities in the field. A good practice would
be for candidates to provide a medical fitness certificate before their
candidature is submitted by the national delegation. In addition,
the age of candidates should also be carefully considered. It is
somehow paradoxical that there is an age limit for candidates for
the position of judge at the European Court of Human Rights whereas
this is not the case for CPT members, whose work is physically demanding.
Note
16. Language skills have always been a key issue in the selection
of candidates for CPT membership. CPT members must have an excellent
command of at least one of the official languages of the Council
of Europe (English or French). At the same time, knowledge of the
other official language, at least passive knowledge, has proved
to be highly desirable in order to facilitate interaction with other
members and experts.
17. The independence and impartiality of CPT members is another
essential aspect that requires due attention during national selection
processes. Of course, these are not put into question by the mere
fact that a particular candidate is a civil servant or otherwise
employed in the public sector. However, a candidate holding a decision‑making
position which implies defining and/or implementing policies at
national level or otherwise holding functions which may give rise
to a conflict of interest, should in principle not be selected.
Note Otherwise,
there must be written guarantees that the candidate concerned will
be moved from that position or functions if elected.
2.2 Selection/election
procedure for CPT members
18. Among the elements to be examined
is the need to come back to the request made in Assembly
Resolution 1808 (2011) that CPT members should be elected by the Assembly,
after a suitable interview procedure.
19. The procedure of appointment of CPT members is in part laid
down in Article 5 of the CPT Convention. As recalled in Assembly
Resolution 1540 (2007), CPT members are elected “by the Committee of Ministers following
a proposal by the Bureau of the Assembly which, in turn, delegates
the examination of the shortlist of the three candidatures submitted
by national delegations to the Sub-Committee on Human Rights of
the Committee on Legal Affairs and Human Rights”.
20. Resolution 1540
(2007) states that the procedure of appointment of CPT members
can be enhanced, in practice, without having to amend the CPT convention,
by improving:
- national selection
procedures, by ensuring their transparency and strengthening mechanisms
designed to lead to the nomination of the most qualified candidates;
- the procedure within the Assembly, by improving the information
on the basis of which the Sub-Committee on Human Rights bases its
recommendation, and by giving it the possibility, in appropriate cases,
to interview shortlisted candidates;
- communication between the Assembly and the Committee of
Ministers.
21. The quality and transparency of national selection procedures
vary from one country to another. There is room for improvement
in many countries but there are also some very good examples. The
national selection procedure in France, for instance, shows what
can be achieved when serious efforts are made to meet the criteria
laid down in
Resolution
1540 (2007): public calls for candidates giving reasonable time
for applying and wide dissemination of the information about CPT
membership within different sectors of relevance to CPT activities;
setting-up of a special, multidisciplinary, expert committee entrusted
with reviewing applications, conducting interviews with candidates
and shortlisting the best qualified female and male candidates with different
professional qualifications. The same goes for the new selection
process put in place in Norway for the 2017 submission of CPT candidatures:
establishment of a CPT sub-committee by the Norwegian delegation
to the Assembly, wide public calls for candidates alongside publication
of information about the CPT, and in-depth interviews of the candidates.
22. This type of procedure should be conducted irrespective of
whether or not there are among the candidates incumbent members
who can be re-elected. It is understandable that other potential
candidates might be reluctant to run against a good incumbent whom
they may perceive as having an advantage in the appointment process.
However, there are always advantages in being on a list of candidates
with a view to future elections or to the possibility of being selected
as an independent expert for specific CPT visits. It is also in
the interest of the CPT to have access to excellent experts who
can be called upon to assist it on an ad hoc basis.
Note
23. A few countries, some more than others, may experience difficulties
in identifying qualified candidates from amongst their own nationals.
This is particularly the case for smaller countries where non-nationals constitute
the majority of the population and where conditions for obtaining
citizenship are strict. The CPT Convention offers the possibility
for a national delegation to put forward one candidate who is not
a national.
Note However, Article 4.3 specifies
that no two members of the committee may be nationals of the same
State. In the case of a candidate possessing several nationalities,
the notion of effective nationality should be used. Moreover, it
can be noted that lists put forward by a national delegation could
include a candidate who is not a national of any State Party. More
generally, there is a wide range of profiles of candidates for CPT
membership (legal professionals, prison officers, law-enforcement
officials, prosecutors, judges, health-care professionals, psychologists,
social workers, civil society representatives, etc.); this should
make it always possible to find a sufficient number of qualified
candidates, even in small countries.
2.3 Concrete
proposals
24. Changing the process of election
of the members of the CPT would require an amendment of the CPT Convention,
which is a lengthy and challenging process. However, there are important
improvements that can be made in the short term which do not require
any amendment to the CPT Convention. Priority should be given to
improving the procedures for shortlisting candidates at national
level and enhancing the procedure within the Assembly in light of
the recommendations made in
Resolution
1540 (2007) on improving selection procedures for CPT members.
25. The Assembly could make a greater contribution to the process
by enhancing its own procedures and by giving more weight to its
Bureau’s recommendations. I should like to make several concrete
proposals to that effect.
2.3.1 Harmonising
the presentation of candidates: redefining the Parliamentary Assembly’s
model curriculum vitae for CPT candidates
26. The drawing up of a new standard
curriculum vitae form, taking further into account the specificities
of CPT membership, could be of great help in obtaining all relevant
information about candidates. At present, the Assembly encourages
candidates to use a harmonised model CV which is appended to the
letter requesting a list of candidates that is sent by the Secretary
General of the Parliamentary Assembly to the Chairpersons of the
Assembly’s national delegations upon expiration of the term of office
of their respective CPT member. Providing a model CV was an improvement
introduced following Assembly
Order
530 (1997) on strengthening the machinery of the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment.
Note However,
the current model CV is rather minimalist and leaves a lot of leeway
to candidates as to what should be included in it. I believe that
while it was an improvement at the time it was introduced, the model
CV is now outdated and should be revised, taking into consideration
other model CVs used in the Council of Europe. The new model CV
should in particular ask candidates to assess their language proficiency in
accordance with the Council of Europe’s
Common
European Framework of Reference for Languages. I have therefore elaborated a new model CV (see Appendix)
to be approved by the Assembly’s Bureau in due course.
2.3.2 Long-distance
interviews focusing on language skills
27. Ideally, the Assembly, that
is to say the Sub-Committee on Human Rights, should carry out face-to-face interviews
of the candidates, as practised by the Committee on the Election
of Judges to the European Court of Human Rights. However, for the
time being, this does not seem to be a realistic approach.
28. Since the entry into force of Protocol No. 2 to the CPT Convention
(ETS No. 152), half of the membership of the CPT is renewed every
two years (Article 5.4 of the CPT Convention). Hence in 2017, for
example, the Sub-Committee on Human Rights will have to consider
24 CPT lists with three candidates each. Interviewing all of them
would amount to 12 full meeting days. It would prove difficult for
any member of our Assembly, no matter how committed, to find – in
addition to the part-sessions, the committee meetings, the fact-finding
visits – the time needed to carry out those interviews. The question
of the costs involved would also need to be explored.
29. However, the Assembly could already qualitatively improve
its input into the selection procedure by obtaining objective facts
about the language skills of the candidates. A CPT member without
working knowledge of either English or French is not in a position
to make an effective contribution to the work of the CPT. However,
the CPT has experienced instances in which the language skills claimed
in the CV do not reflect reality. It is obvious that the Sub-Committee
on Human Rights is not in a position to assess language skills by simply
looking at a CV. The Assembly could, however, possibly organise
remote interviews with all candidates shortlisted by the national
authorities and focus its attention on language skills. This could
be done by two members of the sub-committee (one English speaking
and one French speaking member) through the internet. The interviews
would be short (no longer than 15 minutes), so that a reasonable
number of interviews could be carried out in one day. This would
be a cost-effective exercise with indisputable added value for the Assembly,
the Committee of Ministers and the CPT.
30. I therefore propose that the Sub-Committee on Human Rights
considers appointing each January a team of two parliamentarians
(and two alternates), one English speaking and one French speaking,
with the mandate of conducting long-distance interviews with candidates
in order to check their languages skills.
2.3.3 Checking
more precisely the national selection procedures
31. The Sub-Committee on Human
Rights should play a more active role in ensuring the implementation
of the requirements set out in
Resolution 1540 (2007): public calls for candidatures; consultations on candidates with
both State and non-governmental bodies; interviews with shortlisted
candidates; active involvement of the national delegation to the
Assembly.
32. Indeed, one might wonder how in certain cases the same names
appear on the list submitted by national delegations at two or more
successive elections. In fact, national delegations are already
asked to provide information on the national selection procedure
alongside the names and CVs of the candidates put forward. There
is, however, room for improvement here as, in some cases, the explanations
are laconic or non-existent.
33. It is important that all national delegations provide detailed
information about the selection procedure. In cases where the national
selection procedures do not comply with Assembly recommendations,
the Sub-Committee on Human Rights should consider rejecting the
lists (as has already been done in the past).
3 Need
to further increase awareness in member States
34. The success of the work of
the CPT is also contingent on the political support of the Council
of Europe and its member States. That being so, it is also important
to analyse how to increase the awareness, in each member State,
of the obligation to guarantee the requirements of Article 3 of
the European Convention on Human Rights. When a State Party does
not co-operate or refuses to improve a situation with respect to
CPT recommendations, the committee may, by a two-thirds majority,
agree to make a public statement, after the State concerned has
been given the opportunity to present its views. Issuing a public
statement is the ultimate means of “raising the alarm” that a certain
State is not complying with its obligation to co-operate with the
CPT. Let me underline that the power of issuing a public statement
under Article 10.2 of the CPT Convention is only used by the CPT
as a very last resort: the public statement on Bulgaria in 2015
was only the seventh of its kind since the establishment of the
CPT in 1989 (
CPT/Inf(2015)17).
35. However, as the Assembly has already pointed out, the Committee
of Ministers, as well as perhaps the Assembly itself, has not always
provided the necessary follow-up to public statements issued by
the CPT. The Assembly must itself be more proactive, and must also
request the Committee of Ministers to react to the public statements
issued by the CPT by, at the very least, placing them on its agenda
and seriously addressing the problems identified by the CPT. Unfortunately
there is no sign of improvement since the Assembly’s latest
Recommendation 1968 (2011), which invited the Committee of Ministers to place on
its agenda and discuss as a matter of urgency the CPT’s public statements.
The Committee of Ministers’
reply to this recommendation stressed that “a public statement
should above all be thoroughly examined by the national authorities concerned”.
While the Committee of Ministers agreed with the Assembly that the
exceptional nature of this measure “should merit” its being placed
on its agenda, it failed to do so when the CPT made its public statement concerning
Bulgaria in 2015.
36. Moreover, the Assembly should itself provide greater follow-up
to the public statements issued by the CPT, in addition to the discussion
held before the Sub-Committee on Human Rights in the presence of
the leader of the national delegation concerned. It could also be
useful if the Council of Europe Commissioner for Human Rights took
action of his or her own after a public statement has been made.
37. More generally, beyond the CPT’s public statements, the Assembly
should take stock, at regular intervals, of action taken to prevent
torture and other forms of ill-treatment in member States. The Committee on
Legal Affairs and Human Rights and the Monitoring Committee could
consider jointly inviting the President of the CPT to an annual
exchange of views during which he or she could, inter alia, present the CPT’s annual report.
The chairpersons of national delegations to the Parliamentary Assembly
of the countries visited by the CPT in the previous year could be
invited to participate in this exchange of views.
4 Publication
of CPT’s reports should become more systematic and speedy
38. Regarding the visits conducted
by the CPT, all the information gathered, the consultations with
the State Party concerned, the visit reports and related government
responses remain confidential according to the CPT Convention. The
principle of confidentiality is and should remain an asset regarding
the CPT’s co-operation with national authorities. However, the Committee
publishes its report when requested to do so by the said State Party.
If publication did not depend each time on a specific authorisation
of the Party concerned, the findings and recommendations of the
CPT would be brought into the public domain at a much faster rate,
thus speeding up debate on issues raised in CPT reports. Consultation
with all parties concerned, including members of parliament and
independent specialists, could prompt remedial measures and help
solve (urgent) outstanding problems. The great majority of States
usually request the publication of the CPT’s reports, which has
thus become the general practice. Although this is to be praised,
it will nevertheless involve some delay. Best practice would be
to give a general authorisation for publication of future reports.
That said, a State Party should always be given the opportunity
to postpone the publication of a CPT report for up to six months
after the date of transmission of a report.
39. In this context, one should commend the developing practice
by States whereby they authorise in advance the publication of visit
reports and related government responses, subject to the possibility
in a given case to delay publication for a certain period. Following
the adoption of
Resolution
1808 (2011),
Note the Republic of Moldova made a general
request for all future CPT visit reports to be published as soon
as possible after transmission, except in special cases where it
objects or delays publication. It is now referred to as an “automatic
publication procedure”. The CPT made it clear in its
21st
General ReportNote that it favours this approach instead
of amending the CPT Convention: “Rather than automatic publication
being imposed, the CPT would prefer that it be a policy that States
voluntarily choose to adopt. In this connection, the Committee welcomes
the request … made by the Moldovan Government that all future CPT
reports on visits to its country be published as soon as possible
after transmission to the authorities, without prior authorisation”.
Seven other countries have subsequently agreed to a similar “procedure”
(Austria, Bulgaria, Finland, Luxembourg, Monaco, Sweden and Ukraine).
The Assembly should welcome the automatic publication practice and
strongly encourage States Parties to make such general requests.
40. Such “automatic publication procedures” should allow the CPT
to maintain confidentiality for some time on those rare occasions
when it is deemed necessary. As both the Committee of Ministers
and the CPT put it in the
reply to
Recommendation
1968 (2011), there may be exceptional situations when the rapid
publication of a visit report would do more harm than good.
Note
41. While the publication of CPT visit reports at the request
of the States concerned is common practice, it is of concern that
Azerbaijan and the Russian Federation are not following this practice.
On the contrary, the Russian Federation has only requested the publication
of three reports out of 23,
Note and Azerbaijan of two out of 10.
Note Turkey has not yet requested the
publication of the three latest CPT visit reports (concerning the
June 2015 visit, the April 2016 visit and the latest August/September
2016 visit).
Note Considering that Turkey had up till
then requested the publication of all reports (including, in 2007,
older reports that had never been published), one can only hope
that this is simply a delay and that the request with respect to
those three reports will be made soon. It would be unfortunate – in
particular given the numerous serious torture allegations following
the July 2016 coup attempt – if Turkey were to join Azerbaijan and
the Russian Federation in failing to request publication.
5 Promotion
of the ratification of the OPCAT by all Council of Europe member
States and reinforced co-operation with the NPMs
42. Strengthening all torture prevention
tools and instruments is also extremely important in order for the CPT
to achieve its goals. Although the number of European States which
have ratified the Optional Protocol to the United Nations Convention
against Torture and other Cruel, Inhuman and Degrading Treatment
or Punishment (OPCAT) is increasing, it has not yet been ratified
by all Council of Europe member States.
Note States must be encouraged
to ratify the OPCAT, which foresees national preventive mechanisms
that constitutes a practical expression of subsidiarity. Since its
first visits, the CPT has highlighted the need for the establishment
of such monitoring mechanisms at national level. The primary work
related to the protection from abuse of persons deprived of their
liberty should be carried out at the national level by independent
and effective NPMs, which must be provided with the legal, human
and financial resources necessary to perform on-site prevention
and monitoring activities.
43. The three experts invited to a hearing before the committee
agreed on the importance of NPMs as potential “game changers” in
terms of the prevention of ill-treatment. In its
22nd General
Report, the CPT stressed that “provided they possess the necessary
knowledge and powers and are adequately resourced, monitoring mechanisms
at national level – be they visiting boards, Ombudsman offices or
similar entities – can intervene more frequently, and more rapidly,
than any international body”.
Note It
is in the interest of the CPT to further explore all possibilities
for interaction with the OPCAT mechanisms as “the effectiveness
of efforts to assist States in Europe to prevent torture and other
forms of ill-treatment will in future depend to a large extent on
the quality of the interaction between the Committee and these mechanisms”.
Note
44. The OPCAT (Part IV) sets out minimum requirements for effective
NPMs which can be summarised as follows:
- mandate to carry out preventive visits;
- resources to carry out a full programme of visits;
- access to all places of detention;
- access to all relevant information;
- right to conduct private interviews;
- independence;
- expertise;
- right to make recommendations and to receive a considered
response;
- right to publish reports;
- necessary privileges and immunities;
- credibility.Note
45. There are three main models of national preventive mechanisms:
the so-called Ombudsman/Ombudsman plus model (e.g. Armenia), the
stand-alone single body model (e.g. France) and the multi-body model
(e.g. the United Kingdom). The CPT has never promoted one particular
model over another. However, the degree of interaction between the
CPT and an NPM and the attention that the CPT needs to pay to a
given country greatly depend on the NPM’s independence and effective
functioning. All too often national preventive mechanisms, when
they do exist, are considered to be lacking independence and/or
sufficient resources.
46. States Parties should make every effort possible to facilitate
the exchange of information and co-ordination between the CPT and
NPMs. In its
22nd General
Report, the CPT welcomed the presence of a representative of
the NPM at the end-of-visit talks, when the delegation provided
its preliminary remarks as well as any observations of an urgent
nature. This allowed NPMs to be promptly informed of the CPT’s concerns and
to take appropriate action of their own. The Assembly should invite
States Parties to ensure that a representative of the NPM or any
other relevant national monitoring mechanism is present during such meetings.
47. In the same vein, States Parties should be further encouraged
to make arrangements for CPT visit reports and Government responses
to be made available without delay to NPMs or any other relevant
national monitoring body, on the condition that they are treated
as confidential until their publication. Similar arrangements may
be made in relation to any relevant confidential substantive correspondence
between the CPT and the authorities. This would add an element of
transparency to the work of the CPT – as strongly advocated by the
former President of the CPT, Mr Lətif H. Hüseynov –, without breaching
the principle of confidentiality. Such timely information would
also help the NPMs in their own work.
6 Reinforcing
synergies between Council of Europe and United Nations mechanisms
48. Since the entry into force
of the OPCAT, the Subcommittee on Prevention of Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment (SPT) and the
CPT have sought to co-operate effectively, despite their own legal
constraints. The organisation of their respective activities in
Europe should be based on two guiding principles: complementarity
and subsidiarity. As the President of the CPT put it in November 2016
on the occasion of the 10th anniversary of the entry into force
of the OPCAT, “the synergy between the CPT and the SPT, the CPT
and the national preventive mechanisms, should be centred around
those areas where we have the biggest potential. … During the 27
years of the CPT’s existence, [the Committee] ha[s] engaged in an
on-going dialogue with every single Council of Europe’s member State
in all the areas falling under our mandate. Therefore, we would
ideally see the SPT’s role in Europe not so much in fact-finding,
but rather in streamlining the national preventive mechanisms and
ensuring that they operate properly. This is certainly not a matter
for the CPT to focus on as [the Committee] [is] very careful (some
people say … too careful) with saying anything that would fall under
the exclusive mandate of the SPT, that is to assess the NPMs’ performance”.
Note It
would indeed be highly desirable for the SPT to focus its attention
on the functioning of national preventive mechanisms in Europe while
the CPT continues to focus on its ordinary monitoring and fact-finding
functions through periodic and ad hoc visits. Outside Europe, non-member
States have generally been advised to first sign and ratify the
OPCAT before considering accession to the Convention establishing the
CPT. Both the SPT and the CPT should continue to strive to make
the best use of their scarce resources.
7 Human
resources
49. This brings me to my last but
crucial point; the CPT also depends on the work of its professional Secretariat.
Regrettably, out of the 10 administrators working in operational
divisions, only three are permanent staff.
Note This
is clearly unsuited to the permanent nature of the CPT’s work.
8 Conclusions
50. After 25 years of performing
work of the highest quality, the CPT can be deemed a success. To
preserve and reinforce the CPT’s effectiveness and impact, and in
view of the considerations stated above, I have made a number of
practical and concrete suggestions in the draft resolution, especially
as regards:
- further improvements
of the selection procedures, at both national level and the level
of the Assembly;
- measures to increase access to the CPT’s substantive work
and enhance transparency of its work, including by considering the
question of the automatic publication of CPT reports and related government
responses;
- a stronger involvement of the Assembly and its relevant
committees by contributing to the follow-up of CPT recommendations,
and by encouraging national parliaments to engage with this issue;
- the need for Council of Europe member States to sign and
ratify the OPCAT and to set up effective and independent NPMs;
- the strengthening of all instruments relating to the prevention
of torture at international, regional (e.g. European) and national
level and to ensure the best possible co-ordination of their work.
51. In the draft recommendation, I further suggest calling on
the Committee of Ministers to commit to discussing, as a matter
of urgency, any public statement by the CPT, as well as to make
sure that the CPT is sufficiently and permanently staffed.
52. This report does not call for a revolutionary approach. The
call made on several occasions by the Assembly for the amendment
of the CPT Convention to enable the election of its members by the
Assembly is still valid and should remain the Assembly’s long-term
objective. More immediate and very concrete improvements, however,
seem within reach, without entering into a long and uncertain amendment
process. I am convinced that our proposals could make a difference
and have a positive concrete impact on torture prevention in Europe.
