The Work of the Council of Europe's Torture Committee

Symposium The European Torture Committee after Five Years: An Assessment Jim Murdoch * L The Torture Convention and the Committee for the Prevention of Torture A. Introduction For the most part, places of detention in Europe have ceased being places of stateauthorized infliction of man's inhumanity to man. Yet physical conditions and institutional regimes of confinement of individuals continue to raise substantive and procedural human rights guarantees. The treatment of detainees, convicted prisoners and confined mental health patients provides a litmus test of the extent to which a State gives precedence to human dignity above practical considerations such as security and good order. Since 1945, several global and regional instruments have attempted to enhance the protection of those deprived of their liberty,1 the most recent (and potentially most significant) of which is the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment,2 now in force in 24 Member States of the Council of Europe,3 and shortly to be * 1 2 3 Senior Lecturer, School of Law, University of Glasgow, Scotland. For example, the UN's Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and provisions contained in the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and People's Rights, and the Inter-American Convention on Human Rights. Non-binding instruments include the UN's Standard Minimum Rules for the Treatment of Prisoners, and the Basic Principles for the Treatment of Prisoners. See generally N. Rodley, The Trtatment of Prisoners under International Law (1987). For the background to the Convention see Novak, 'Die Europ&ische Konvention zur Verhfltung der Folter Regelmifiige Besuche von Haftanstalten durch Europ&isches Komitee zur VehUtung der Folter ab 1989'. 15 EvGRZ (1988) 537; Novak, The Implementation of the European Convention for the Prevention of Torture: Acts of the Strasbourg Seminar', 10 HRLJ (1989) 131 et seq; and KP. Sommermann, Der Schutz der Menschenrechte im Rahmen des Eurvparates (1990). As at November 4th 1993, the Convention has been ratified by Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Liechtenstein, 5 EJIL( 1994) 220-248 The Work of the Council of Europe's Torture Committee The Work of the Council of Europe's Torture Committee The task of the CPT is 'to examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons' from torture, inhuman or degrading treatment,5 that is, in the words of the CPT, to strengthen 'the cordon sanitaire that separates acceptable and unacceptable treatment or behaviour'.6 In this respect, 'the Torture Committee' is somewhat a misnomer the focus is upon all aspects of detention, not merely the most extreme which could amount to 'torture'. And its operation modifies somewhat the description suggested by the French Foreign Minister, Roland Dumas, of the CPT as Us casques bleus des droits de I'homme;7 this stresses its multinational composition but not its modus operandi which is more that of an undercover squad than a highprofile, front-line fighting unit However, in the present international climate the description does perhaps unwittingly hint at a body charged with a vital task but one calling for more resources than have been provided for the full achievement of objectives. Effectiveness is promoted by two fundamental and inter-related principles, cooperation and confidentiality. When ratifying the Treaty, States agree to a general duty to cooperate with the Committee in its work,8 and more particularly, to permit the Committee to visit 'any place within its jurisdiction where persons are deprived of their liberty by a public authority',9 unless there arc 'exceptional circumstances' justifying the national authorities in making representations against a proposed 4 5 6 7 8 9 Luxembourg, Malta, Netherlands, Norway, Portugal, San Marino, Spain, Sweden, Switzerland, Turkey, and the United Kingdom. Czechoslovakia tigncd the Convention at die end of 1992, but only a matter of days before it split into the Czech and Slovak Republics. The Committee of Ministers subsequently decided in June 1993 that these two States were to be regarded as signatories to the Convention as from January 1st 1993. By virtue of Protocol No. l.Doc. CPT/Inf (93) 17, opened for signature in November 1993. Ait. 1. Under Arts. 6(1) and (2), the Committee draws up its own Rules of Procedure, meets in camera, and takes decisions by simple majority (with the quorum being equal to the majority of its members), except in relation to the making of a public statement on a State's failure to cooperate or take steps to improve detention conditions when a two-thirds majority is needed. First General Report, Doc. CPT (91) 3, para. 3. Cf.CMStctc, he Monde diplomatique, September 1991. Art. 3. Each State must notify the details of the authority responsible for receiving communications and of any 'liaison officer' appointed: Art. 15. Art. 2. Article 20 further provides that States may agree to extend the application of the CPT to any other of its territories either at the time ofratificationor thereafter. 221 opened to States which are non-members for accession.4 The Committee for the Prevention of Torture (more usually referred to as the Torture Committee' or as the 'CPT') has published three annual reports, and it is now possible to offer an early and tentative assessment of its operational framework, its attempts at standardsetting, and the extent to which it complements or indeed challenges other Council of Europe initiatives such as the European Convention on Human Rights and the European Prison Rules. The article will not, however, go beyond this: in particular, it will not relate the Convention to other examples of regional or international instruments for the protection of prisoners. The focus will be distinctly European. Jim Murdoch 10 11 12 13 14 15 16 17 18 19 20 21 22 222 Under Art 9(1) representations may only be made on the grounds of national defence, public safety, or serious disorder in the place of detention; upon tbe medical condition of a prisoner, or that an urgent investigation into a serious crime is in progress. Yet tbe making of such does not act as a veto upon any proposed visit. Art. 9(2) provides that tbe CPT and national authorities must consult each other immediately to ascertain the particular situation and decide what arrangements are necessary. Ait. 7(2). Art. 14(3) states that exceptionally, a State may declare that any expert or other person assisting the CPT may not take part in a visit. Art. 8(2Xc). Art 8(4). Art 8(3). Art 8(2Xd); the CPT must have regard to any rules of domestic law or professional ethics in seeking such information. E.g., Austr (...truncated)