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Published online by Cambridge University Press: 17 January 2008
Five years ago we surveyed the early years of the European Convention for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment1. At that time there was already a good deal of information available regarding the modus operandi of the Committee which was established but comparatively little regarding the manner in which the Committee was translating its mandate2 into practice. Today the picture has changed considerably. The manner in which the Committee conducts its work is essentially unchanged but from the large corpus of published reports it is possible now to map out the principal standards promulgated by the Committee and through which it seeks to fulfil its functions3. The purpose of this article is to highlight these developments.
1. See Evans, M. and Morgan, R., “The European Convention for the Prevention of Torture: Operational Practice” (1992) 41 I.C.L.Q. 590. The Convention (“ECPT”) entered into force on 1 02 1989 and the Committee (“CPT”) was established in Sept. of that year.Google Scholar
2. The Preamble to the ECPT explains this as being “to strengthen by non-judicial means of a preventive nature” the realisation of the obligation contained in Art.3 of the European Convention for the Protection of Fundamental Human Rights and Freedoms (“ECHR”), i.e. “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
3. CPT reports will be cited as follows. The name of the country will be followed by a number indicating whether it was the 1st, 2nd or subsequent visit to that country. Where reference is being made to a State response, this will be indicated following the visit number. Interim responses will be called “Response 1” and follow-up reports “Response 2”. Thus “UK 1” refers to the CPT report on the first visit to the UK and “UK 1 Response 2” refers to the 2nd UK response to that report. CPT Annual General Reports are referred to as Gen.Rep.1, 2, etc. All published reports and responses are found in the CPT/INF series issued by the Council of Europe.
4. These being: Albania, Andorra, Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and the UK.
5. Croatia, Moldova, the Russian Federation, “TFYRO Macedonia” and the Ukraine gave a commitment that they would ratify the ECPT within one year of their accession to the Council of Europe, i.e. Croatia: 6 Nov. 1997, Moldova: 13 Nov. 1996, the Russian Federation: 28 Feb. 1997, “TFYRO Macedonia”: 9 Nov. 1996, Ukraine: 9 Nov. 1996. No such commitment was sought from Lithuania when it acceded to the Council of Europe on 14 May. 1995. See now Parliamentary Assembly Doc.7784 of 26 Mar. 1997, Report on strengthening the machinery of the [ECPT], paras.1 1–17.
6. At the time of its accession to the Council of Europe on 10 Feb. 1995 it was understood that Latvia intended to ratify the ECPT. However, no time limit was set.
7. First Protocol, Art.3 (amending ECPT, Art.18).
8. These being Andorra, Bulgaria, Cyprus, France, Italy, Portugal, and Turkey.
9. It seems unlikely that the CPT would wish to see its resources spread to the Central Asian republics. On the other hand, it might find Israel a tempting proposition.
10. See the Dayton Agreement on Implementing the Federation of Bosnia and Herzegovina, (1996) 35 I.L.M. 170.Google Scholar Annex 6 (Agreement on Human Rights) Chap.3, Art.XIII(4) provides: “All competent authorities in Bosnia and Herzegovina shall cooperate with and provide unrestricted access to … the supervisory bodies established by any of the international agreements listed in the Appendix to this Annex”. The ECPT is included as No. 12 in the Appendix.
11. ECPT, Art.4(1).
12. As of 1 Apr. 1997 members had not yet been elected for Albania, Andorra, Estonia and Slovenia and no new member had been elected for Portugal following the expiry of the previous member's term of office in 09 Sept. 1996.
13. For detailed consideration of these issues see Evans, M. and Morgan, R., “The European Torture Committee: Membership Issues” (1994) 5 E.J.I.L. 249.Google Scholar
14. ECPT, Art.5(3). The term of office of three of the first elected members was reduced to a two-year term by lot in order to ensure a regular turnover. This was a legacy of an earlier draft of the ECPT which envisaged a smaller committee limited (initially) to seven members and which did not consist of members from each State. See Cassese, A., “A New Approach to Human Rights: The European Convention for the Prevention of Torture” (1989) 83 A J.I.L. 128, 146.Google Scholar
15. Art.1(2) of the Second Protocol will amend Art.5(4) of the ECPT to provide: “that, as far as possible, one half of the membership of the Committee shall be renewed every two years, the Committee of Ministers may decide, before proceeding to any subsequent election, that the term or terms of office of one or more members to be elected shall be for a period other than four years but not more than six and not less than two years”. This would allow members elected outside the regular biennial election to be allocated to an appropriate “September electoral cohort”.
16. Second Protocol, Art.1, amending ECPT, Art.5(3).
17. First Protocol, Art.8; Second Protocol, Art.3.
18. The pattern of signatures and ratifications is the same as for the First Protocol (for which see supra n.8) except that France has ratified the Second but not the First.
19. The members for Luxembourg (Claude Nicolay, the current President), Denmark (Bent Sørensen, the first Vice-President), the UK (Stefan Terlezki), Austria (Rudolf Machacek) and the Netherlands (Nadia Gevers Leuven-Lachinsky).
20. See e.g. Gen.Rep.l, para.87; Gen.Rep.4, para. 16; Gen.Rep.6, para.22.
21. Gen.Rep.4, para.26, a reference to ECPT, Art.4(4). It may be no coincidence that this comment was made shortly following the departure in Dec. 1994 of the member for Italy, who during the course of 15 months' membership made not a single country visit.
22. They included private practitioners, judges, academics and diplomats or politicians.
23. The group includes a serving prison governor, a former prison chaplain, a former director of prisons, an adviser to a prison service and a retired civil servant with experience of penal administration.
24. Gen.Rep.6, para.22. In 1990 only 3 out of 16 members were women and there are still only 8 out of 28 (6 of whom are medics or para-medics).
25. Interview with the CPT Bureau, Sept. 1996.
26. Our interviews in Hungary in Sept. 1996 indicated that this was the fate of Hungarian nominees, for example.
27. Of the 33 different experts employed up to the end of 1996, 24 were medically qualified, 17 of them psychiatrists.
28. Only 5 of the 54 visits undertaken up to the end of 1996 did not use experts. Most delegations include two experts.
29. For example, the International Commission of Jurists and the then Swiss Committee Against Torture, since 1992 the Association for the Prevention of Torture (APT).
30. ECPT, Art.7(2).
31. Six out of the 33 experts used up to the end of 1996 have accompanied delegations on six or more occasions.
32. ECPT Explanatory Report, para.48.
33. There had been 7 periodic visits in both 1992 and 1993.
34. Gen.Rep.4, para.21.
35. Gen.Rep.1, para.46.
36. E.g. the visit to Sweden involved returning for three days to the principal remand prison in Stockholm, previously visited during a periodic visit to Sweden in May. 1991. The CPT was concerned about the extensive use of pre-trial custodial isolation of prisoners (see Sweden 1, paras.63–70; Sweden 2).
37. E.g. the follow-up visit to Turkey in 1994 involved a return to police stations and prisons previously visited in 1990, 1991 and 1992, and visits to police stations and prisons not previously seen (see Gen.Rep.1, 2 and 4).
38. E.g. three of the five ad hoc visits to Turkey (1990, 1991, 1994) have lasted between one and two weeks, and the ad hoc visit to Northern Ireland in 1993 lasted eight days.
39. Gen.Rep.4, para.23. Consequently, visits were undertaken to Hungary in 1994, to Slovenia, Bulgaria, Slovakia and Romania in 1995 and to Poland in 1996. Visits are planned to Albania, the Czech Republic and Estonia in 1997.
40. See supra n.5.
41. Gen.Rep.2, para.29. On current plans eight long-standing member States will have received only one periodic visit by the end of 1997, namely Finland, Iceland, Ireland, Liechtenstein, Luxembourg, Norway, San Marino and Sweden.
42. Interview with the CPT Bureau, Sept. 1996.
43. ECPT, Art.11(2).
44. Idem, Art.10(2).
45. Since it may take up to 18 months for a State to have received a report and submit its response, and this is when publication is often authorised, some time must elapse before the willingness of States to authorise publication becomes apparent.
46. There have, however, been examples of confusion and delay. E.g. the report on the 1990 periodic visit to Denmark was published in 1991 but the responses were not published by the Council of Europe until 1996, the Danish government having simply assumed that they too were regarded as public in the meanwhile but not specifically authorising publication. Publication of the reports on visits to Spain in 1991 and 1994 were delayed for domestic political reasons whilst other reports have taken longer to appear than seems necessary (e.g. Italy: visit Mar. 1992, published Jan. 1995; Ireland: visit Oct. 1993, published Dec. 1995).
47. E.g. the UK has so far been visited three times, twice periodically (1990 and 1994) and an ad hoc visit to Northern Ireland (1993). The UK government prefers to publish the CPT report simultaneously with its response and has done so on all three occasions. The govern ment has also published a follow-up response to the first visit.
48. Reports on Hungary (first visited in 1994) and Bulgaria and Slovenia (first visited in 1995) have so far been published.
49. Public Statement Turkey 1, paras.2,21 and 25.
50. Public Statement Turkey 2, para.1.
51. The visit took place at the time of the incidents giving rise to Appl. No.23282/94, Demosthenous v. Cyprus, which the Commission on Human Rights declared admissible (16 01. 1995). The complaint alleged acts of torture committed at Limassol police station (visited by the CPT). The application was resolved by a friendly settlement.Google Scholar
52. ECPT, Preamble.
53. Gen.Rep. 1, para.45.
54. Idem. para.51.
55. These can be gleaned both from the published visit reports and from the General Reports. Gen.Rep.2, paras.35–60 sets out a series of standards relating to aspects of police and prison custody whilst Gen.Rep.3, paras.30–77 addresses health care services in prisons.
56. Mental hospitals and holding facilities for aliens at airports and elsewhere also feature among the other facilities regularly visited by the CPT. A consideration of the emergent standards in these fields is beyond the scope of this article. It might, however, be noted that the next General Report will consider standards relating to the treatment of aliens (see Gen.Rep.6, para.24).
57. See Cassese, op. cit. supra n.14, at pp.134–135.Google Scholar
58. Costello-Roberts v. UK (1993) E.C.H.R. Ser.A, No.247-C.Google Scholar
59. See the Reports of the Commission on Human Rights in Adkivar v. Turkey (10 1995), Appl. No.21893/93 (but not by the Court in its judgment of 16 09 1996); Mentes v. Turkey (03 1996), Appl. No.23186/94.Google Scholar
60. See also Lopes Ostra v. Spain (1994) E.C.H.R. Ser.A, No.303-C. It was argued that the State violated Art.3 by authorising the construction of a tannery which caused considerable pollution. Although not considered to be sufficiently serious to amount to a violation, this again illustrates how Art.3 has a potency beyond the reach of the CPT.Google Scholar
61. See Tomasi v. France (1992) E.C.H.R. Ser.A, No.241-AGoogle Scholar; Ribitsch v. Austria (1995) E.C.H.R. Ser.A, No.336Google Scholar; Aksoy v. Turkey, judgment of the Court, 18 12 1996.Google Scholar
62. E.g. Hilton v. UK (1978) 3 E.H.R.R. 104, Appl. No.5613/72Google Scholar; McFeeley v. UK (1980) 20 D.R. 44, Appl. No.8317/78.Google Scholar There is no clear line between conditions of detention and ill-treatment. E.g. in Hurtado v. Switzerland (1993), Appl. No.17549, the Commission found a violation of Art.3 in the failure of the authorities to provide the applicant with clean clothing until the day following his arrest. The applicant had defecated in his trousers during the course of his arrest, which had involved the use of a stun grenade. The case was resolved by a friendly settlement: see E.C.H.R. Ser.A, No.280.Google Scholar
63. Gen.Rep.2, para.36 provided a basic statement of these safeguards, which have been subject to development in subsequent visit and General Reports.
64. Gen.Rep.6, para. 15 adds further detail to the content of this standard.
65. Cf. Gen.Rep.2, para.36, which provided for “the right to a medical examination by a doctor of their choice (in addition to any medical examination carried out by a doctor called by the police authorities)”.
66. Ibid.
67. Ibid.
68. E.g. the Netherlands 1, Response 1, paras.23–24; Germany 1, Response 1, pp.7–8Google Scholar; for extended discussion see Morgan, R., “Custody in the Police Station: How do England and Wales Measure up in Europe” (1996) 17(1) Policy Studies 55–72.Google Scholar
69. E.g. Sweden 1, paras.24–25, Sweden 1, Response 1, pp.7–8.Google Scholar
70. E.g. Spain 1, paras.49–51.
71. E.g. Austria 1, paras.56–59.
72. Our interviews in Hungary (Sept. 1996) suggest this is the case in that country.
73. Gen.Rep.2, para.39.
74. Idem, para.40.
75. Idem, para.41.
76. E.g. Ireland 1, para.55, where criticism was made of a disciplinary tribunal in which one member was a senior officer in the police force to which the person facing charges belonged and the other members were drawn from the body which referred the complaint to the tribunal. See also UK 2, para.95.
77. E.g. Idem, paras.91–94, noting that during 1992 the Independent Commission for Police Complaints dealt with 395 cases, which resulted in only one charge but of which the officers concerned were found not guilty. The CPT canvassed whether the standard of proof in such cases could be lowered from the criminal (beyond reasonable doubt) to the civil (the balance of probabilities).
78. Gen.Rep.2, para.42.
79. E.g. in Hungary the CPT found it “a commonplace” for detainees to be held in police custody for prolonged periods. It therefore raised questions concerning regime activities not normally considered relevant to police custody (Hungary 1, paras.27–39).
80. Gen.Rep.2, para.42.
81. The general formulation is found in ibid. The words in italics have been added sub sequently. This statement is now found in all first periodic reports.
82. Thus, where lavatories are not integral to cellular accommodation, requests to use toilet facilities must be responded to promptly, which implies an effective call system (Spain 1, para.41).
83. Gen.Rep.2, para.43, this being “a desirable level rather than a minimum standard”. The country reports also give guidance on the acceptable sizes of multiple-occupancy cells, though these guidelines are more nebulous.
84. E.g. Belgium 1, para.26 (4m2 cells inappropriate for overnight stays); Spain 1, para.36 (single-occupancy cells of “scarcely more than 4m2” thought to “border on the unacceptable” for stays of over 24 hours).
85. E.g. Spain 1, para.38; Italy 1, para.33, Belgium 1, para.26.
86. E.g. Sweden 1, para.18 (1.45m2), Belgium 1, para.29 (1.25m2), France 1, para.25 (less than 2m2).
87. Austria 2, para.99.
88. Of course, where the CPT encounters conditions which it considers already to have breached this standard (and says so) the prospect of a direct clash with the jurisprudence of the ECHR arises.
89. See Murdoch, J., “The Work of the Council of Europe's Torture Committee” (1994) 5 E.J.I.L. 220, 231–238.Google Scholar
90. Gen.Rep.2, para.46.
91. UK l, para.39.
92. Sweden 1, paras.46, 73.
93. Finland 1, para.81; and Hungary 1, paras.93,97 (cubicles of 1.2m2 in a reception unit at Budapest Remand Prison).
94. Spain 1, para. 126; Ireland 1, para.78. Spain 2, para.113 (10m2 described as “just about adequate” for two inmates). Below this conditions are usually considered “cramped” (e.g. UK2.para.119).
95. Gen.Rep.2, para.49 stresses: “Either a toilet facility should be located in cellular accommodation (preferably in a sanitary annex) or means should exist enabling prisoners who need to use a toilet facility to be released from their cells without undue delay at all times (including at night)”.
96. Gen.Rep.2, para.48. Moreover, “it is axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather”. This applies to all prisoners, including those subject to disciplinary measures.
97. See Sweden 1, para.52.
98. Idem, para.47.
99. Hungary 1, para.97; Slovenia 1, para.71. Also Gen.Rep.2, para.47.
100. E.g. Greece 1, para.120, noting that prison regimes were “rich in out of cell time but poor in activities… Such a regime is not adequate”.
101. Thus providing only one hour of formal teaching per week is “manifestly insufficient in an establishment designed for the detention of school aged inmates” (Netherlands 1, para. 116).
102. See Home Office, Prison Statistics England and Wales 1995, Cm.3555 (1996, London: HMSO), Table 1.14—International Prison Populations.Google Scholar
