C Explanatory memorandum
by Mr Damir Arnaut, rapporteur
1 Introduction
1. The motion for a resolution
underlying the present report recalls
Resolution 2160 (2017) “25 years of the CPT: achievements and areas for improvement”,
in which the Parliamentary Assembly decided to “develop its role
in contributing to the follow-up of CPT recommendations, in particular
by encouraging national parliaments to adopt a proactive approach
to them”. Possible methodologies suggested by the Assembly in
Resolution 2160
(2017) included discussion of the reports and/or public statements
by the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) on their countries, including follow-up
thereto, in the parliamentary committees concerned, and submitting
parliamentary questions to governments. The use of the Assembly’s
parliamentary co-operation activities to encourage such initiatives was
mentioned, as was the possibility of taking inspiration from existing
national practices in relation to the implementation of judgments
of the European Court of Human Rights.
Note
2. The Assembly has on several occasions recalled the outstanding
work of the CPT and proposed ways to make the CPT stronger by preserving
its effectiveness and credibility, in its
Resolution
1248 (2001) “European Committee for the Prevention of Torture (CPT):
composition of the Committee” and
Resolution
1540 (2007) on improving selection procedures for CPT members, for
instance. In
Resolution
1808 (2011) on strengthening torture prevention mechanisms in Europe
and
Resolution 2160 (2017), the Assembly further recommended that national parliaments
and the Assembly engage in timely dialogues to question and seize governments
on issues raised by the CPT.
3. Recommendations by the CPT can be found in its annual reports,
public statements and country visit reports and cover a wide variety
of situations, ranging from concrete material conditions of places
of detention to legal frameworks, institutional culture, procedures,
practices and attitudes. The number of recommendations per country
is impressive. In some countries, the CPT is starting its sixth
or seventh periodic visit, each followed by a report with a number
of concrete and realistic recommendations.
4. For the purposes of this report, I sent a questionnaire to
national parliaments to examine the situations across the Council
of Europe member States.
Note Thirty
countries replied and I would like to thank those parliaments
Note for providing
their valuable feedback. The Committee on Legal Affairs and Human
Rights also held a hearing in October 2018 with the participation
of George Tugushi, CPT expert, former Ombudsman in Georgia, member
of the Georgian Parliament, and Barbara Bernath, Secretary General
of the Association for the Prevention of Torture (Geneva, Switzerland).
5. Before proceeding, however, I would draw attention to certain
important distinctions between judgments of the Court and recommendations
of the CPT. The first is reflected in the terminology: Court judgments
are binding on respondent States, whereas CPT recommendations, strictly
speaking, are not. However, as the CPT has emphasised on many occasions,
the principle of co-operation set out in Article 3 of the Convention establishing
it (the European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (ETS No. 126),
ECPT) requires that States take decisive action to improve
the situation in the light of its recommendations. That is a very
specific feature of the CPT when compared with other monitoring bodies
or national preventive mechanisms. However, under Article 10.2 of
the same convention, failure to co-operate or refusal to improve
the situation may only lead the CPT to make a public statement on
the matter. There may be a need for other actors, including parliamentarians,
to intervene.
2 Role of the Parliamentary Assembly
6. Before turning to the question
of how national parliaments could better support the work of the
CPT, I would like first to examine the suggestions in
Resolution 2160 (2017) concerning the Assembly: to reinforce its political
support by reacting appropriately to the CPT’s public statements;
to strengthen its existing dialogue with the CPT, in particular
via the Committee on Legal Affairs and Human Rights; and, more generally,
to pay greater attention to the prevention of torture in member
States (paragraph 8).
2.1 Providing the necessary follow-up
to public statements issued by the CPT
7. Mr Jordi Xuclà’s report
Note and
Resolution 2160 (2017) were adopted over a year ago, and there have been no
significant changes in the Assembly’s working methods since then.
I refer to the detailed description in this report of the Assembly’s
past work, notably in relation to its role in the procedure for
election of CPT members, including its recommendations concerning
national procedures for the selection of candidates, the practice
of requesting the Committee of Ministers to react to the public
statements issued by the CPT and the practice of holding an exchange
of views with the head of the Assembly delegation of any country
with respect to which the CPT has made a public statement.
8. Since
Resolution
2160 (2017) was adopted on 26 April 2017, our committee has reaffirmed
its practice of holding an exchange of views with a CPT representative
and the leader of the national delegation concerned after the CPT
has issued a public statement.
Note Following the CPT’s
public statement of 13 July 2017 on Belgium, on 12 October 2017
the committee discussed the matter with Mr Hendrik Daems, Chairperson
of the Belgian delegation, along with Mr Mark Kelly, 2nd Vice-President
of the CPT and head of the CPT delegation that had visited Belgium.
The committee then decided to come back to the issue in a year’s
time, in order to review progress made by the Belgian authorities
in addressing the problems to which the CPT had drawn urgent attention.
In his presentation during the hearing held with the committee in
October 2018, Mr Tugushi indicated that the Belgian Parliament was
soon to discuss a draft law, which included provisions aimed at addressing
the CPT’s concerns about the absence of a guaranteed minimum service
in prisons during periods of industrial action by prison staff.
9. The Belgian example shows how dialogue and political support
within the Assembly can help ensure that important and necessary
improvements, recommended by the CPT, are made at a national level.
However, as stated by the expert, Mr Tugushi, when the CPT reaches
the point where a public statement is needed, a serious failure
to improve national situations in the light of its recommendations
has already occurred. While prompt reactions to public statements
and the organisation of specific hearings must continue to be featured within
our committee’s agenda on a systematic basis, parliamentarians have
understandably a greater interest in preventing national situations
from reaching such a critical point.
2.2 Holding a joint annual hearing on
the CPT’s annual report and ad hoc thematic hearings
10. Another proposal made in
Resolution 2160 (2017) (paragraph 9) was for our committee and the Assembly’s
Monitoring Committee to 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 Assembly delegations
of the countries for which CPT visit reports are mentioned in the
annual report and relevant representatives of civil society could
be invited to participate in this exchange of views. This is an interesting
proposal as it creates an opportunity for members to clarify any
misunderstandings and would allow them to feel more engaged to make
the best use of the reports in their national parliament and in
the Assembly’s work on national developments, European trends and
any urgent improvement needed, both at a policy level and a practical
level. If some reports are not public, Assembly members could encourage
the state concerned to authorise this.
11. The study of the CPT’s annual report could also lead to the
organisation of ad hoc thematic hearings on new standards or outstanding
issues, possibly within the framework of our committee’s recently
established thematic debates during our regular meetings. This also
has the advantage of creating no extra costs to the Assembly. The
organisation of a joint annual hearing, however, may need further
examination in the light of the Assembly’s current budgetary situation.
On the one hand, committees are encouraged to reduce the number of
meetings they hold outside part-sessions, which allows fewer opportunities
for such necessarily time-consuming activities. On the other hand,
budgetary cuts may reduce the number of texts that rapporteurs are able
to finalise for presentation at committee meetings, leaving more
time available for other items of business, such as the proposed
exchange of views. Our committee should reflect further upon whether
such an activity would align with its priorities, given this situation.
The proposal would also need to be examined by the Monitoring Committee,
in the light of its own priorities and resources.
2.3 Reporting on the prevention of torture
in Europe
12. As to the Assembly paying greater
attention to the prevention of torture in member States, I would
begin by recalling our committee’s ongoing report on protecting
human rights during transfers of prisoners (rapporteur: Mr Emanuel
Mallia, Malta, SOC). The Assembly has also addressed other detention-related issues
in recent years, including in
Resolution
2223 (2018) on detainees with disabilities in Europe,
Resolution 2154 (2017) on securing access of detainees to lawyers,
Resolution 2122 (2016) on administrative detention,
Resolution 2082 (2015) on the fate of critically ill detainees in Europe,
Resolution 2077 (2015) on abuse of pretrial detention in States Parties to
the European Convention on Human Rights and
Resolution 2020 (2014) on the alternatives to immigration detention of children.
Detention-related issues have also figured prominently in more general
reports on migration, such as
Resolution
2174 (2017) on human rights implications of the European response
to transit migration across the Mediterranean. They have also appeared
in country-specific reports, for instance
Resolution
2240 (2018) on unlimited access to member States including “grey
zones”, by Council of Europe and United Nations human rights monitoring
bodies,
Resolution 2157
(2017) on human rights in the North Caucasus: what follow-up
to
Resolution 1738 (2010)? and
Resolution
2133 (2016) on legal remedies for human rights violations on the
Ukrainian territories outside the control of the Ukrainian authorities. There
are also recurrent in reports of the Monitoring Committee (for example
Resolution
2203 (2018) on progress of the monitoring procedure (January-December
2017) and periodic review of Estonia, Greece, Hungary and Ireland,
Resolution
2156 (2017) on the functioning of democratic institutions in Turkey
and Resolution
2149 (2017) on progress of the monitoring procedure (September 2015-December
2016) and periodic review of Austria, the Czech Republic, Denmark,
Finland, France and Germany), and in our own committee’s work on
the implementation of judgments of the European Court of Human Rights
(e.g.
Resolutions 2178
(2017) and
2075
(2015) and the accompanying reports). Several of these resolutions
are accompanied by a recommendation to the Committee of Ministers
in which the Assembly generally calls on governments to continue
paying the utmost attention to the prevention of torture and respect
for human dignity in detention.
Note
13. I hope that this focus will be maintained. It is through this
reporting process and by keeping a close watch on relevant issues
of concern and national progress that members of the Assembly participate
in raising awareness on CPT activities and standards, and eventually
actions being taken by relevant stakeholders, aiming at “zero-tolerance
for torture” policies implemented in all European member States.
In this context, Assembly committees should continue to hear from
relevant experts, through the consideration of their interventions
in committee hearings or written submissions on specific issues,
and the participation of Assembly members, in relevant conferences.
Rapporteurs and general rapporteurs also have the possibility to carry
out fact-finding visits
Note and follow-up on issues
at the core of the work of the CPT, subject to the availability
of resources.
Note
3 Role of national parliaments
14. As noted above,
Resolution 2160 (2017) included two main concrete proposals: CPT reports to
be made the subject of parliamentary committee discussions and questions
to governments; and promotion of an enhanced role for national parliaments
through the Assembly’s parliamentary co-operation activities. The Assembly’s
work to promote implementation of judgments of the European Court
of Human Rights is instructive in respect of both.
3.1 What role do parliamentarians have
in overseeing compliance of CPT recommendations?
3.1.1 General remarks on parliaments’ role
with respect to implementing CPT standards
15. Whilst the legal considerations
mentioned in my introduction might seem to complicate the situation, from
another perspective, the role of parliaments with respect to the
implementation of CPT recommendations may be more straightforward.
Domestic authorities are almost invariably directly responsible
for detention conditions, meaning that governments are immediately
competent to introduce necessary reforms. Parliamentary oversight
of the executive can thus be a particularly effective means of promoting
change in this area.
16. In
Resolution 1823
(2011) on national parliaments: guarantors of human rights
in Europe, the Assembly recalled that national parliaments “are
key to the effective implementation of international human rights
norms at national level and fulfil their duty to protect human rights
through [inter alia] holding the executive to account, liaising
with national human rights institutions and fostering the creation
of a pervasive human rights culture. The members of the Assembly,
having a double mandate – as members of the Assembly and of their
respective national parliaments – are under a particular duty to
contribute to such action”.
17. Resolution 1823
(2011) encouraged parliamentarians to monitor the determination
and enforcement of human rights standards by the domestic judicial
and administrative authorities and urged them to carefully scrutinise
the executive in their countries when it comes to the implementation
of, in particular, international human rights norms. It also called
on parliaments to set up and/or to reinforce structures that would
permit the mainstreaming and rigorous supervision of their international
human rights obligations, on the basis of the appended “Basic principles
for parliamentary supervision of international human rights standards”
(the “Basic principles”). These Basic principles cover the appropriate
framework and responsibilities; access to independent expert advice;
and co-operation with other institutions (including national human
rights institutions) and civil society. In
Resolution 2075 (2017) on implementation of judgments of the European Court of
Human Rights, the Assembly again called on States Parties to implement
the Basic principles. The United Nations Secretary General also
stated in his August 2017 report that “while human rights are a
cross-cutting issue that should be taken into account by all parliamentary
committees, the establishment of a parliamentary committee with
an exclusive human rights mandate sends a strong political message
and should be encouraged”.
Note
18. The United Nations Human Rights Council has similarly recalled
“the crucial role that parliaments play in, inter alia, translating
international commitments into national policies and laws, and hence
in contributing to the fulfilment by each State Member of the United
Nations of its human rights obligations and commitments and to the
strengthening of the rule of law”.
Note The
2015
Brussels Declaration on “Implementation of the European Convention on Human
Rights, our shared responsibility” also reiterated the primary role
played by national parliaments in guaranteeing and protecting human
rights at national level.
19. Additionally, in its recent report, the United Nations Human
Rights Council recognised even further the fundamental role of parliaments
in the promotion and protection of human rights, building on similar
principles evoked by the Assembly in 2011, by developing “draft
principles on parliaments and human rights” (the “draft principles”)
to be further considered in consultation with members of parliamentary
human rights committees.
Note The
report also described parliaments as “guardians of the important
role of civil society organisation” from which they gather “human
rights developments and concerns”. It adds that “parliaments are
thus uniquely positioned to contribute to closing the implementation
gap, to prevent violations of human rights and to ensure better
protection, especially of vulnerable groups”. Moreover the report
states that “parliaments serve as a nexus between the international
and national human rights arena, providing as one of the principal
channels through which the international and regional human rights
mechanisms’ recommendations reach the national level, in particular
in their legislative, budget allocation and oversight roles”. From
the foregoing considerations, governing bodies should benefit from
their efforts to promote opportunities to enhance parliaments’ role
in the prevention and implementation process of CPT recommendations.
3.1.2 Reinforced dialogue with the executive
on the implementation of CPT recommendations
20. National parliaments have first
and foremost an essential role to play in holding their governments
to account.
Note Dialogue
between the governments and parliaments should be particularly reinforced
on matters related to CPT recommendations pertaining to the country
individually and general European standards. At least two thirds
of the replies I received from the parliamentary research services
saw their parliament’s role, with regard to the implementation of
CPT standards, as a part of general government oversight.
21. I gathered from my research that parliamentary discussions
were most often triggered on an ad hoc basis. For example, the Slovak
Republic’s National Council has reacted to cases of ill-treatment
by public authorities and considered legislative amendments aimed
at complying with the recommendations of the CPT.
Note Although
I believe there are many ways for parliaments to be more proactive
, as I will describe at a later stage,
this reactive approach, as termed by Mr Tugushi during our hearing,
remains essential to the work of the governments. CPT reports should
provide parliaments with the means to react effectively to the governments’
policies and practices pertaining to CPT recommendations. In turn,
governments can feed any new information, extracted from the public
parliamentary debates and regular written or oral parliamentary questions,
into their implementation reports and relevant reforms. Parliaments
become essential counterparts to governments’ adequate implementation
of CPT recommendations.
Note
22. According to Mr Tugushi, several parliamentary committees
at national level have been organising hearings with CPT representatives
and other national and international experts when relevant bills
or budgetary proposals were being tabled in parliament. According
to him, there are clear examples of parliamentarians expressly referring
to CPT reports when discussing new legislation on prisons. He mentioned the
use, by Belgian parliamentarians, of CPT considerations within their
discussions of a law on the prison service and the status of prisoners
in 2005. French parliamentarians also looked carefully at CPT reports
when discussing a prison law a few years later. I would encourage
such practice to be taken up by national parliaments on a quasi-systematic
basis.
23. CPT visit reports are addressed to governments on a confidential
basis to facilitate close co-operation with the national authorities.
However, these reports should be swiftly published after transmission,
as should the government responses. This would allow an increase
in the parliament’s knowledge of CPT related-issues and facilitate
the relevant dialogue between the parliament and the government.
The Assembly has commended in particular the developing practice
of States to agreeing “in advance to the automatic publication of
CPT visit reports and related government responses, subject to the
possibility of delaying publication for a certain period in specific
circumstances”.
Note Taking stock of the developments
since my colleague, Mr Jordi Xuclà (Spain, ALDE), reported in his
explanatory
memorandum to Resolution 2160 (2017)Note that
eight countries (i.e. Austria, Bulgaria, Finland, Luxembourg, the
Republic of Moldova, Monaco, Sweden and Ukraine) had agreed to the
“automatic publication procedure”, I can add only one more country
to the list: Denmark. I therefore renew the Assembly’s call to member
States for speedy systematic publication of the reports, as it enables
national parliaments “to contribute to the process of taking forward
the implementation of recommendations contained in a report”.
Note If required, such procedure enables
parliamentarians to respond to situations demanding urgent action
from the government or to make use of the most updated information
on their country situation when discussing long-standing issues
and national reforms.
24. Additionally, CPT reports should be made more accessible to
parliamentarians and the wider public by being translated in their
national language, where possible, and being made available in national
parliaments’ documentation centres and on regularly updated websites.
This would certainly give parliaments and other organisations an
enhanced opportunity to participate, through the various channels
available for dialogue, in holding their governments to account,
sharing their own opinions with the public at large and in safeguarding CPT
standards.
3.1.3 Reinforced dialogue with national
preventive mechanisms and other similar bodies
25. Torture prevention has become
a shared responsibility which requires an integrated policy approach.
To this end, national parliaments are highly encouraged to liaise
with national human rights institutions, including national preventive
mechanisms (NPMs) and ombudspersons, in order to ensure comprehensive
information collection and a comprehensive debate on the implementation
of standards on torture and detention.
26. In States Parties to the Optional Protocol to the United Nations
Convention against Torture (
OPCAT), NPMs have similar powers and mandate as the CPT and
are permanently based in the country. There are 37 functioning NPMs among
the Council of Europe member States.
Note The
Assembly recognised in its
Resolution
2160 (2017) that NPMs are a “practical expression of subsidiarity”.
The Norwegian parliamentary Ombudsman informed me, for example,
that the CPT has been an important source of both standards and methodologies
since it established a dedicated NPM in 2014. The working methods
of the Norwegian NPM have drawn heavily upon the methodologies developed
and used by the CPT, including in the framework of visits to places
of detention.
27. Not surprisingly, a majority of the replies I received to
the questionnaire actually referred to their NPM or Ombudsperson’s
mandate in trying to meet the obligations related to the implementation
of CPT standards. Therefore, synergies between these independent
institutions and parliaments are essential if the latter are to follow
up effectively on CPT recommendations. The vast majority already
have direct contact with parliaments. According to the Association
for the Prevention of Torture, 27 are ombudsinstitutions that present
their annual report to parliament; this is also the case for some
other specialised NPMs, such as the United Kingdom’s Her Majesty’s
Inspectorate of Prisons or the French Contrôleure
générale des lieux de privation de liberté. In Austria,
the Volksanwaltschaft (Ombudsman
Board) takes the lead to ensure follow-up on CPT recommendations.
Its reports pay special attention to preventive human rights monitoring
in general, and CPT issues in particular. These reports are then
considered in the “Ombudsman Board Committee” of the National Council.
As members of the Ombudsman Board have the right to speak in parliament,
they emphasise these issues in the Budget Committee proceedings.
28. While respecting the OPCAT requirement that NPMs should be
independent, parliaments can play a significant role in exploring
further possibilities for interaction with such institutions. CPT
reports can be used to reinforce the need to ratify the OPCAT and
designate functioning NPMs. Parliaments can support the NPMs’ suggestions
and recommendations. Moreover, an ad hoc dialogue with NPMs and
other similar bodies, possibly in conjunction with the government,
should be established following every publication of CPT visit reports
or public statement, or, where necessary, in the framework of relevant
bills or budgetary decisions. These enhanced synergies could be
set out in a memorandum of understanding.
3.2 A proactive approach towards CPT standards
3.2.1 Parliamentary mechanisms and tools
for the review and promotion of CPT recommendations
29. Discussions of CPT country
reports and public statements should be held soon after they are
published, whether or not a draft law is being discussed. For example,
the Greek Parliament’s Special Permanent Committee on Equality,
Youth and Human Rights discussed the CPT’s preliminary observations
following the CPT’s ad hoc visit in April 2018 as soon as it had
been published.
Note The Portuguese Parliament informed
me that they were currently envisaging hearings with the government
leaders and members of the administration and visits to prisons,
following the presentation to the parliament’s Committee on Constitutional
Affairs of the recent publication of the CPT report on its periodic
visit in 2016.
Note
30. It would also be relevant for the CPT’s annual reports to
be discussed on a systematic basis in parliaments, giving the possibility
for parliamentarians to discuss thematic issues that may not yet
be part of the country visit report, as explained by Ms Bernath,
from the Association on the Prevention of Torture, during our hearing.
I also support Ms Bernath’s proposal for national parliaments to
conduct a one-off review of the evolutions in practice and outstanding
issues. This could possibly be conducted jointly by the national parliaments
together with the NPMs or other national monitoring bodies, as well
as the CPT. It could focus on a specific theme or type of place
of detention and could start with a comparison between the first
CPT visit report and its most recent (public) report. Analysis such
as this should be useful for the parliament to define its strategic
priorities. The choice of format for these events (length, target
audience, etc.) and reporting exercises will have to be defined
by parliaments depending on allocated resources, priorities, time
available and the competing demands on the parliamentarians’ attention.
31. Furthermore, parliamentarians should become voices for human
rights and in particular for the prevention of torture, through
their participation in general campaigns and interactive events.
To this end, it would be most opportune to conduct awareness-raising
events and training programmes for parliamentarians and their parliamentary
staff on human rights, and in particular CPT standards. Parliamentarians
can participate in identifying their needs and resources available
for such activities.
32. Visits to places of detention have proven to be very useful
for raising awareness among legislators of conditions of detention
and the situation of detainees. Several parliaments in Europe give
a special mandate to parliamentarians or specific committees to
visit prisons and other places of detention.
Note These visits are not equivalent
to monitoring visits, but instead enable parliamentarians to be
confronted with the reality of places of detention. In these situations,
CPT reports can prove to be invaluable working tools. They enable parliamentarians
to get a sense of how the CPT’s recommendations are implemented.
The experience of visits should be useful to parliamentarians drafting
bills and give them more authority when submitting questions to their
governments on detention-related issues. I recall the Assembly’s
2014 publication, in co-operation with the Association for the Prevention
of Torture, of a
“A
guide for parliamentarians – Visiting immigration detention centres”, which aims to raise awareness and encourage and assist
parliamentarians in carrying out visits to places of detention where
irregular migrants and asylum seekers are held. Many of the guiding
principles set out in the guide can be applied to other places of
detention.
33. While raising awareness of the general public on CPT standards
in the course of their regular duties does not give rise to significant
costs, some activities and tools may have to be specifically included
in budgetary priorities. Some activities may indeed require a specialised
secretariat and specific logistics, but this can also be organised
in a cost-efficient manner. For example, parliamentarians can start
by visiting any detention centre in their own constituency, should
resources be limited, thus avoiding excessive travelling and accommodation
costs. Making standards available in national languages on a public
website, for example, whether through a parliament’s documentation
centre or otherwise, also requires co-ordination between stakeholders
at parliament and government levels, and again, adequate resourcing.
3.2.2 Parliamentary structures for parliamentary
review and promotion of CPT recommendations
34. As mentioned above, the Assembly’s
2011 “
Basic
principles” recommend that “national parliaments shall establish
appropriate parliamentary structures to ensure rigorous and regular
monitoring of compliance with and supervision of international human
rights obligations, such as dedicated human rights committees or appropriate
analogous structures, whose remits shall be clearly defined and
enshrined in law”. According to the 2018
draft
principles on parliaments and human rights (“draft principles”) drawn up by the Human Rights Council,
“a parliamentary human rights committee shall be given as broad
a mandate as possible, covering all human rights defined in national
and international law”. It shall be defined according to “clear
terms of reference setting out its purpose and goals”. This should
enhance the efficiency, accuracy and credibility of the work parliamentarians
are aiming to achieve. Parliamentary structures established in accordance
with these principles should also act to ensure prompt and effective
follow-up to CPT recommendations.
35. Research conducted by the Assembly’s Parliamentary Project
Support Division (PPSD) in 2016 showed that many national parliaments
had specialised human rights committees or sub-committees (including Albania,
Bosnia-Herzegovina, the Czech Republic, Finland, Greece, Hungary,
Ireland, Latvia, Montenegro, Romania and the United Kingdom); other
countries took a “mainstreaming” approach, with all committees in principle
competent to address the human rights aspects of issues within their
mandate (for example Denmark, the Netherlands, the Russian Federation
and Sweden). Some countries’ parliamentary structures displayed
a “hybrid” model reflecting both approaches (for example Armenia,
Cyprus, Georgia, Germany, Italy and Lithuania). Several countries’
governments systematically reported to parliament on judgments of
the European Court of Human Rights concerning the State (for example
Croatia, Germany, Hungary, the Netherlands and the United Kingdom).
Note A 2018 report by
the PPSD revealed further progress over the period 2015-2017, with
new parliamentary human rights committees or sub-committees being
created in Armenia, Georgia, the Republic of Moldova and Ukraine.
Note
36. The replies to the questionnaire also revealed that CPT reports
are presented to specifically mandated parliamentary committees.
Yet sometimes this is not sufficient to ensure appropriate scrutiny
by parliamentarians. The Dutch parliament, for instance, informed
me that while the government’s response to the most recent report
by the CPT had been on the agenda of the Standing Committee on Security
and Justice, no member had raised concerns regarding the CPT report
during the related debate. Furthermore, the 2016 report by the PPSD
recalled that “despite the potential advantages of having a specialised
human rights committee or sub-committee, there is a risk that leaving
human rights scrutiny to a single specialised body may create a
“silo” within parliament and discourage the integration of human
rights and related rule of law issues into the work of other committees.
Moreover, the mere existence of a specialised committee does not guarantee
effective implementation; rather the effectiveness of such structures
is dependent upon factors such as political will and the availability
of expert legal advice”.
37. Indeed, with these foregoing considerations in mind, the Assembly
should continue to support national parliaments’ important role
in calling for the development of such structures if they do not
exist yet in their member States and reinforcement when they do.
Reinforcing such structures implies first and foremost, that national
parliaments have the political will to make them function and that
the remits of these structures are “clearly defined and enshrined
in law” as indicated by the “Basic principles”. I encourage in particular
every parliament to ensure that CPT standards are actually included
in these structures’ procedures and mandate. For example, Mr Tugushi
explained that the Parliament of Georgia had established specific
mechanisms on the follow-up of the execution of judgments of the
European Court of Human Rights, recommendations made by the United
Nations treaty bodies and under the Universal Periodic Review. These
mechanisms have facilitated the presentation and discussion of relevant
government reports during hearings of the Legal Issues Committee
and the Committee on Human Rights and Civil Integration. The Parliament
of Georgia and other parliaments could consider including CPT recommendations
within the same framework.
38. Specific general rapporteurs or focal points on CPT-related
issues within such parliamentary structures could be designated
from among members known for their competence in the field of human
rights or having professional experience in the areas covered by
the European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment. Training programmes and awareness-raising
activities, providing access to external independent expertise,
can be targeted at these specific structures and their staff. As
mentioned by the 2016 PPSD report, the development of a professional
parliamentary staff is particularly important as it “provides continuity
between parliaments and ensures the creation of an “institutional
memory” attached to the work of the parliamentary committees”. The
structures” would also become a more favourable terrain for engaging
and consulting with NPMs, Ombudspersons and other similar bodies,
international bodies (for example the CPT, the Parliamentary Assembly,
the United Naitons Subcommittee on Prevention of Torture, etc.)
as well as civil society representatives working on the prevention
of torture. Issues related to the provision of sufficient financial
and human resources to enable the structures to carry out their
functions effectively should be discussed.
3.3 Opportunities for parliamentary co-operation
activities
39. Peer-to-peer parliamentary
support through a series of Assembly activities can prove to be
very valuable to national parliaments’ awareness of standards and
tools on torture prevention. Such technical and policy assistance
to their counterparts can support the establishment of parliamentary
structures and mechanisms on the prevention of torture and protection
of human rights. Peer-to-peer dialogue is furthermore a way to strengthen,
in a co-operative context, political willingness and commitment
towards the implementation of CPT standards and the follow-up to
CPT recommendations.
40. The PPSD has been conducting various co-operation activities
with the members and staff of national parliaments in recent years.
These activities, as relevant to the present report, can be grouped
into the following four categories:
- seminars for parliamentarians on the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment generally (for example in April 2016 in Strasbourg,
in March 2017 in Borjomi, and in June 2017 and November 2018 in
Budapest);
- seminars for parliamentarians on the role of parliaments
in supervising the execution of Court judgments (for example in
October 2013 in London, in February 2014 in Warsaw, in October 2014
in Madrid, September 2015 in Tbilisi and in April 2017 in Strasbourg);
- seminars for the staff of national parliaments on the
Convention generally (for example in June 2012, September 2013,
January and September 2014, March 2015 and September 2016, all in
Strasbourg);
- seminars on parliamentarians’ visits to immigration detention
centres, followed by accompanied visits to such centres (for example
in December 2012 in Strasbourg, in October 2013 in Zurich, in November 2014
in Calais, in May 2015 in Amsterdam (Schiphol) and in November 2016
in Vordernberg).
41. While all of these seminars cover issues which can be related
to CPT recommendations, the PPSD should design activities which
are particularly focused on CPT standards and recommendations and
their implementation by national parliaments. It should be noted,
however, that the current budgetary situation has forced a reduction
in the Assembly’s parliamentary co-operation activities. On 26 January
2017, the Bureau of the Assembly decided that co-operation activities
would – in principle – be limited to those for which supplementary
financing may be assured (via European Union joint programmes, voluntary
contributions, including for specific projects such as parliamentary
campaigns, etc.). Whilst some of the activities mentioned above
were indeed financed by external sources, in particular the European
Union, this consideration must be taken into account when discussing
the possibility of future co-operation activities related to the
current report. Outside donors, including the European Union and
Council of Europe member States making voluntary contributions,
should be encouraged to finance co-operation activities described
here. The Assembly should invite the Committee of Ministers to ensure
that the parliamentary dimension of co-operation activities, in conjunction
with the PPSD, is included in the various programmes being financed
and organised in relation to the implementation of CPT standards
and recommendations by member States.
4 Conclusions
and general policy recommendations
42. The long-standing recommendations
made in CPT reports, along with the evident need for the Assembly to
continue to address detention-related issues, show the importance
of maintaining and enhancing efforts to prevent torture and inhuman
or degrading treatment or punishment in Council of Europe member
States. In this respect, national parliaments have the potential
to play an important role. Whilst there has been significant progress
made in developing the potential of national parliaments to act
as human rights guarantors as regards human rights in general and
supervision of execution of judgments of the European Court of Human
Rights in particular, it is less clear that the same can be said
for CPT recommendations. Given that the prohibition in all circumstances
of torture and inhuman or degrading treatment, perhaps the most
egregious of all affronts to basic human dignity, is a peremptory
norm of international law, this is clearly an area where the moral imperative
is strong.
43. The extensive work already undertaken on the role of national
parliaments as guarantors of human rights shows that there are many
promising avenues to be explored by which more could be done to
ensure that CPT recommendations are better implemented by national
authorities. The creation of new structures and mechanisms at national
level in accordance with the Assembly’s “Basic principles for parliamentary
supervision of international human rights standards” or a re-emphasis
of the mandate and activities of existing structures and mechanisms,
and more efficient monitoring and follow-up mechanisms, would help
to achieve this. The Assembly’s parliamentary co-operation activities
could include projects to support this specific function, as has been
done to reinforce the role of national parliaments in supervising
the execution of judgments of the European Court of Human Rights.
