Abstract
Since the UN Optional Protocol to the Convention against Torture (OPCAT) came into force in 2006, the institutional landscape governing monitoring in European prisons has become increasingly complex. Already subject to regular monitoring visits by the European Committee for the Prevention of Torture (CPT), the majority of Council of Europe Member States are now also States Parties to the OPCAT. Accordingly, these States Parties may be subject to periodic visits by both the CPT and the UN Subcommittee for the Prevention of Torture (SPT). Under OPCAT, States Parties must also designate or establish their own independent National Preventive Mechanisms (NPMs), which undertake regular visits to all places of detention across the state. The result is that prisons in the majority of Council of Europe States now receive three levels of external scrutiny. The present chapter provides the background context, explaining the ECPT (European Convention for the Prevention of Torture) and OPCAT frameworks before exploring in greater detail the practical implications of this more complex area and in particular the relationships between the different monitoring bodies.
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Notes
- 1.
Within the Council of Europe itself the CPT is now one of a number of bodies tasked with the monitoring of human rights obligations at a national level. Whilst the nature of its treaty-based visiting mandate is still unique within the Council of Europe , it now takes its place among bodies such as the European Commission against Racism and Intolerance (ECRI) and the European Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC), which also undertake country visits as an element of their oversight activities. The establishment of the Council of Europe Commissioner for Human Rights in 1999 has also given rise to a complementary means of addressing both thematic and in-country human rights issues. The CPT is also operating in a very much changed European landscape from that which existed at the time of its creation, including the growth in European Union (EU) competence in relation to criminal justice issues, and in particular the introduction of the European Arrest Warrant and the Prisoner Transfers Directive which reflect increasing activism in its work relating to prisons and policing. The establishment of FRONTEX and of the European External Action Service (EEAS) following the Lisbon Treaty is not only important in its own right but has also increased the significance of instruments such as the EU Torture Guidelines.
- 2.
The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) had been adopted by the UN General Assembly in 1984 and entered into force on 26th June 1987, the very day on which the Committee of Ministers of the Council of Europe adopted the text of the ECPT. In 1985, the United Nations Commission on Human Rights had also established the position of UN Special Rapporteur on Torture (the SRT), whose first report was presented to the Commission on Human Rights in 1986.
- 3.
Indeed, the original idea was even bolder in its claims, being publically launched in a pamphlet entitled Torture: How to Make the International Convention Effective (International Commission of Jurists and Swiss Committee against Torture 1979).
- 4.
For a recent examination of the work of the SPT relative to NPMs, see Steinerte (2014).
- 5.
- 6.
For a list of ratification dates, see http://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/126/signatures.
- 7.
In 1993 the Committee of Ministers of the Council of Europe adopted the First Protocol to the ECPT which was intended to permit non-member states of the Council to become, by invitation, parties to the Convention. By the time the First Protocol entered into force on 1 March 2002 it had already become a dead letter.
- 8.
The two member states not parties to the ECPT at that point were Armenia and Azerbaijan which had only become members of the Council in January 2001 and both had ratified the ECPT by the end of 2002.
- 9.
These being Andorra, Belgium, Iceland, Ireland, Latvia, Monaco, Russia, San Marino and Slovakia. All these states are currently parties to the Convention against Torture and so in a position to become a party to the OPCAT.
- 10.
Under OPCAT art. 24, a state may, at the time of ratification or accession, make a declaration permitting it to delay doing so for up to 3 years, and it also permits it to request a further postponement of up to 2 years. Within Europe, Bosnia-Herzegovina, Germany, Hungary and Romania all made such Declarations, though Germany established its NPM well within 3 years, whilst Romania requested an extension—the only country so far to have done so.
- 11.
For an overview of each model, see the NPM Directory maintained by the Human Rights Implementation Centre, Bristol Law School at http://www.bristol.ac.uk/law/research/centres-themes/hric/resourcesreferences/npmdirectory/.
- 12.
See, for example, the conference organised by the Netherlands Inspectorate of Justice and the VU University of Amsterdam, June 2012, entitled ‘the triangular working relationship between the SPT, CPT and NPM: inspection in the field of detention on a global, regional and domestic level’.
- 13.
Indeed, given that numerous NPMs are themselves comprised of multiple bodies with their own internal sets of relationships, the resulting picture is even more complex again.
- 14.
All there is, is a fairly standard stipulation that it should not prejudice international agreements providing for greater protection of persons deprived of their liberty (ECPT, art. 17(1)).
- 15.
For more on the OPCAT’s drafting history, see Murray et al. (2011: chapters 1–3). Indeed, even following its entry into force, such questions continued to be posed. See, for example, Nowak and McArthur (2008: 1154), who ask ‘…for states party to both instruments…what added value will the Protocol have’.
- 16.
This is further supported by OPCAT art. 11(c) which mandates the SPT to ‘Co-operate, for the prevention of torture in general, with the relevant United Nations organs and mechanisms as well as with the international, regional and national institutions or organisations working towards the strengthening of the protection of all persons against torture and other cruel. Inhuman or degrading treatment or punishment.’ This, again, clearly embraces the ECPT and CPT.
- 17.
This was, until recently, hampered by both the CPT and SPT only announcing their visiting programme in November for the forthcoming year. This has now been alleviated by the CPT announcing its visiting plans significantly earlier, in March/April, which means that when the SPT decides on its programme, in June, the CPT’s regular programme is already known.
- 18.
For an endorsement of this fairly minimal ambition, see Kicker and Möstl (2012: 88).
- 19.
On average, a CPT visit report is transmitted about eight or nine months after the visit takes place, and a response is requested within six months. Thus the state is likely to be most engaged substantively about a year after the actual visit has taken place. Although the SPT tends to transmit its reports four or five months after a visit, the period of response is similar.
- 20.
The may also undertake ‘follow-up visits’ and at the time of writing (April 2016) has done so on four occasions: to Paraguay in 2010, following up on a visit undertaken in 2009; to Cambodia in 2013, following up on a visit undertaken in 2009; to Maldives in 2014, following up on a visit undertaken in 2007; to Benin in 2015 following a visit undertaken in 2008. Since the SPT has more recently begun to visit previously visited countries within its more general programme of work, the need for ‘follow-up visits’ of this nature may well decline.
- 21.
Thus in its third Annual Report (CAT/C/44/2, 25 March 2010, para 19) the SPT said that it took account, inter alia, of the date of ratification , establishment of an NPM, geographical distribution, size and complexity of a state, regional preventive monitoring and urgent issues reported. These are by no means the only factors; others include the work of other UN mechanisms, discussed in the following section, and practical, technical and logistical issues.
- 22.
Thus, whilst the decision making of the SPT takes place in June of the preceding year, that of the CPT now takes places earlier and is made public in time for it to be taken into consideration. Obviously, the CPT will not be aware of the SPT’s as yet undecided plans. This reverses the situation before 2014, when the decision-making of the SPT was made in ignorance of the CPT’s plans, though it must be said that there is a degree of predictability to the CPT’s cycle of regular visits. The CPT’s ad hoc visits are of course entirely unpredictable and cannot be factored into any planning process. It seems unlikely that the CPT takes much account of the SPT’s visiting programme when considering whether to undertake an ad hoc visit, but given their differing natures and backgrounds, that is reasonable.
- 23.
Silvia Casale (CPT member from 1997–2009; SPT member from 2006–2009); Zdenek Hayek (CPT member from 1996–2008; SPT member from 2007–2014); Leopoldo Torres-Boursault (CPT member from 1993–2000; SPT member from 2007–2009) and Marija Definis-Gojanovic (CPT member from 2002–2013; SPT member from 2007–2012 and from 2014).
- 24.
See 17th General Report (CPT/Inf (2007)39, para 31), recording the resignation of Silvia Casale as President of the CPT following her election as Chair of the SPT in March 2007.
- 25.
One such expert, Mark Kelly, was a former member of the CPT secretariat, and is now an elected member of the CPT.
- 26.
See, for example, 17th General Report (CPT/inf (2007)39, para 19), 18th General Report (CPT/Inf (2008)25, para 22) and 23rd General Report (CPT/inf (2013)29, para 28).
- 27.
This is not to say that the desirability of making such meetings more meaningful is not accepted. For example, in its 22nd General Report the CPT says that ‘…it is incumbent on the CPT and SPT to seize all opportunities to cooperation and the sharing of know-how, and in this regard there are regular exchanges of views between the two bodies and their respective secretariats’ (CPT/inf (2012)25, para 28). Regretfully, ‘regular’ does not necessary imply ‘frequent’.
- 28.
See the Conference Proceedings published as New partnerships for torture prevention in Europe (Council of Europe and Association for the Prevention of Torture 2010).
- 29.
These tend to be included as substantive comments in the General Reports, and are then replicated in the CPT’s ‘CPT Standards’ document, CPT/Inf/E (2002)1 Rev. 2015, available at http://www.cpt.coe.int/en/documents/eng-standards.pdf.
- 30.
See The approach of the Subcommittee on Prevention of Torture to the concept of prevention of torture and other cruel, inhuman or degrading treatment or punishment under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT/OP/12/6 (30 December 2010), para 5(f).
- 31.
This contrasts with the CPT which does issue statements of standards on a periodic basis. Interestingly, former CPT member Renate Kicker now distinguished between the normative standards applicable to states and the ‘implementation standards’ which guide the work of expert bodies: see generally Kicker and Möstl (2012).
- 32.
See The approach of the Subcommittee on Prevention of Torture to the concept of prevention of torture and other cruel, inhuman or degrading treatment or punishment under the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT/OP/12/6 (30 December 2010), para 3.
- 33.
Ibid, para 5 (f).
- 34.
Section V of each SPT Annual Report from the fourth (CAT/C/46/2, 3 February 2011) onwards addresses ‘Substantive Issues’ which ‘…may be taken to reflect the current approach of the SPT to the issues that it addresses’ (ibid, para 4). Recent examples include: prevention of torture and lesbian, gay, bisexual, transsexual and intersex persons para (ninth Annual Report, CAT/OP/C/57/4, 22 March 2016, paras 48–82) pre-trial detention (eight Annual Report, CAT/C/54/2, 26 March 2015, paras 73–96); corruption and the prevention of torture (seventh Annual Report, CAT/C/52/2, 19 March 2014, paras 72–100); indigenous justice and the prevention of torture (sixth Annual Report, CAT/C/50/2, 23 April 2013, paras 69–94).
- 35.
For example the Analytical Assessment Tool for National Preventive Mechanisms (25 January 2016), available at http://www.ohchr.org/Documents/HRBodies/OPCAT/AnalyticalTtoolsNPM_en.pdf.
- 36.
By the end of 2015, the SPT has undertaken NPM advisory visits to Honduras, Senegal, Moldova, Germany, Armenia, Ecuador, Malta, The Netherlands and Turkey.
- 37.
By the end of 2015 the SPT had undertaken two such visits, to Nigeria and to Nauru.
- 38.
The SPT Regional Teams are not based on the five UN regional groupings but on four functional regions, which includes a single European Regional Team covering the Council of Europe area. Details are on the SPT website at http://www.ohchr.org/EN/HRBodies/OPCAT/Pages/ContactRegionalTeams.aspx.
- 39.
See also the CPT’s 24th General Report ‘…the CPT delegations have had consultations with [national preventive] mechanisms during many visits’ (CPT/Inf (2015)1, para 32).
- 40.
This is in addition to its ‘welcoming the presence of representatives of the mechanisms at its meetings’ during the course of the visit.
- 41.
This might include a meeting in the country concerned and which might also involve ‘other relevant actors’ (para 46).
- 42.
This contrasts with the practice of the SPT which does visit places of detention with NPMs in the context of its NPM Advisory Visits.
- 43.
Thus the CPT now routinely raises issues concerning the establishment of NPMs under the OPCAT. When planning its own visits the SPT will also regularly have regard to the published reports of the CPT and the recommendations which they contain.
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Bicknell, C., Evans, M. (2017). Monitoring Prisons: The Increasingly Complex Relationship Between International and Domestic Frameworks. In: Daems, T., Robert, L. (eds) Europe in Prisons. Palgrave Studies in Prisons and Penology. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-62250-7_2
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