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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.19 State Reporting Procedure

Giuliana Monina

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
19 December 2019
ISBN:
9780198846178

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 03 October 2023

Subject(s):
Torture — Treaties, entry into force — Treaties, interpretation

(p. 507) Article 19  State Reporting Procedure

  1. 1.  The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.

  2. 2.  The Secretary-General of the United Nations shall transmit the reports to all States Parties.

  3. 3.  Each report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.

  4. 4.  The Committee may, at its discretion, decide to include any comments made by it in accordance with paragraph 3 of this article, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1 of this article.

1.  Introduction

1  The State reporting process serves to monitor the implementation of human rights treaties at the national level and creates a basis for constructive dialogue between States and treaty bodies. It is the only mandatory monitoring mechanism included in all nine core human rights treaties and under two Optional Protocols (OP) to the Convention of the Right of the Child (CRC).1

2  Since Article 19 CAT was drafted according to the model of Article 40 CCPR, the following interpretation will take into account the similarities and differences between both provisions. As with Article 40 CCPR, the drafting process of Article 19 CAT was dominated by the fear of delegates from Socialist States that the examination of State reports by the Committee against Torture (CAT Committee or Committee) might lead to critical observations on States’ compliance by the Committee, which they considered as undue interference with State sovereignty. As the Convention only entered into force towards the end of the Cold War, this controversy between experts from Western and Socialist States, which had dominated the first ten years of the Human Rights Committee (HRC)’s practice, no longer played a significant role in the Committee against Torture.

3  States shall submit an initial report on their domestic implementation of the Convention within one year after the entry into force of the Convention and shall thereafter submit periodic reports on any new developments every four years. In addition, they might be requested by the CAT Committee to submit other additional or special reports on an ad hoc basis. The Committee dedicates a substantial amount of its meeting time to the consideration of State reports, which usually takes place in a spirit of constructive dialogue with State representatives. Contrary to the approach of Socialist States, which aimed at avoiding any country specific conclusions and recommendations, the Committee started adopting concluding observations on each State report in the early 1990s. These concluding observations contain both positive aspects and subjects of concern, but in the course of the years, the critical comments and recommendations have gradually become the main focus of the Committee’s conclusions. As of 2002, concluding observations are also subject to a special follow-up procedure, which has now become an integral part of the reporting cycle and a key mechanisms for assessing the impact of the Committee’s recommendations.

4  In principle, the State reporting procedure is a useful tool for States parties to regularly review the actual state of their compliance with the various obligations deriving from (p. 509) the Convention, including problems and difficulties encountered (self-assessment), and for the Committee to evaluate critically the respective State’s level of compliance (external assessment by an independent expert body). But, as with other reporting systems of human rights treaty bodies, the proper functioning of the reporting procedure before the CAT Committee is hampered by the problem of late or non-reporting.2 This problem seems to be particularly relevant for the reporting procedure under the CAT which is among the UN human rights treaty per lowest reporting rate.3

5  To date there have been several initiatives at the general UN level aimed at overcoming such problems and, more generally, strengthening the treaty bodies,4 the latest being the initiative of Navi Pillay started in 2009 and resulted in GA Resolution 68/268 of 2014.5 Inter alia, the proposal advanced by Pillay encouraged States to adopt a number of measures concerning the reporting procedures, ie to introduce a comprehensive reporting calendar, a simplified and aligned procedure, as well as measures aiming at strengthening the capacity of States to implement the treaties. In this spirit, also the Committee has, since it has been operational, developed various methods and mechanism aimed at improving the States parties’ compliance with their reporting duty. Most recently, for example, the Committee has adopted the so-called simplified reporting procedure, which substitutes the traditional reporting procedure for the States parties that have decided to accept it. The new procedure aims at facilitating the reporting process and strengthening the States parties’ capacity to fulfil their reporting obligations in a timely and effective manner.6

6  In addition to the reporting procedure itself, on the basis of its experience in the State reporting (and other) procedures, the Committee may also issue general comments on the interpretation of certain treaty provisions. So far, the Committee has adopted four general comments.

7  Finally, recognizing the crucial importance of civil society in the proper functioning of the reporting procedure, the Committee has since 2012 strengthened its policy on reprisals against individuals or organizations as a consequence for having communicated with the Committee.

8  After illustrating the different types of State reports, this article will provide an overview of the reporting procedure by looking at all its different steps, namely the submission of State reports; their consideration by the Committee; and, lastly, the adoption, publication of and follow-up to the concluding observations adopted by the Committee. (p. 510) The article then continues with an overview of the problem of overdue reports as well as on the measures so far taken in this regard; and concludes with a short survey on the Committee’s policy on reprisal following Article 19.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

9  Original Swedish Draft (18 January 1978)7

Article 16

States Parties undertake to submit to the Secretary-General of the United Nations, when so requested by the Human Rights Committee established in accordance with article 28 of the International Covenant on Civil and Political Rights (hereafter referred to in the present Convention as Human Rights Committee), reports or other information on measures taken to suppress and punish torture and other cruel, inhuman and degrading treatment or punishment. Such reports or information shall be considered by the Human Rights Committee in accordance with the procedures set out in the International Covenant on Civil and Political Rights and in the Rules of Procedures of the Human Rights Committee.

10  Swedish Proposal for Implementation Provisions (22 December 1981)8

Article 29

  1. 1.  The States Parties to the present Convention undertake to submit to the Secretary-General of the United Nations

    1. (a)  within one year of the entry into force of the Convention for the States Parties concerned, reports on the measures they have taken to give effect to their undertakings under the Convention; and

    2. (b)  subsequently, when so requested by the Committee, reports or other information relating to the application of the Convention.

  2. 2.  Such reports or other information shall be considered by the Committee which shall transmit such comments or suggestions relating to them as it may consider appropriate to the States Parties. The Committee may also transmit such comments or suggestions to the Economic and Social Council along with copies of the reports it has received from the States Parties.

  3. 3.  The States Parties may submit to the Committee observations on any comments or suggestions that may be made in accordance with paragraph 2 of this article.

11  Draft Implementation Provisions, Submitted by the Chairman-Rapporteur (1 February 1982)9

Article 18

  1. 1.  States Parties to the Convention undertake to submit to the Secretary-General of the United Nations reports on the measures they have taken to give effect to their undertakings under the Convention:(p. 511)

    1. (a)  within one year of the entry into force of the Convention for the States Parties concerned; and

    2. (b)  whenever any new measures have been taken; and

    3. (c)  when the group established in accordance with article 17 so requests.

  2. 2.  Such reports shall be considered by the group established in accordance with article 17, which shall transmit them with such comments and suggestions as it may consider appropriate to the States Parties. The group may also transmit such comments or suggestions to the Commission on Human Rights along with copies of the report it has received from the States Parties.

  3. 3.  The States Parties may submit to the group established in accordance with article 17 observations on any comments or suggestions that may be made in accordance with paragraph 2 of the present article.

12  Four Draft Articles on Implementation, with the Explanatory Note, Submitted by the Chairman-Rapporteur (24 December 1982)10

Article 19

  1. 1.  The States Parties undertake to submit to the Secretary-General of the United Nations reports on the measures they have taken to give effect to their undertakings under the Convention:

    1. (a)  within one year of the entry into force of the Convention for the States Parties concerned; and

    2. (b)  whenever any new measures have been taken; and

    3. (c)  when the Committee so requests.

  2. 2.  Such reports shall be considered by the Committee, which shall transmit them with such comments or suggestions as it may consider appropriate to the States Parties. The Committee may also transmit such comments or suggestions to the United Nations Commission on Human Rights along with copies of the reports it has received from States Parties.

  3. 3.  The States Parties may submit to the Committee observations on any comments or suggestions that may be made in accordance with paragraph 2.

13  Draft Resolution Submitted by the Netherlands (et al.) to the General Assembly (23 November 1984)11

Article 19

  1. 1.  The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.

  2. 2.  The Secretary-General of the United Nations shall transmit the reports to all States Parties.

  3. 3.  Each report shall be considered by the Committee which may make such general comments on the report as it may consider appropriate and shall forward these to the (p. 512) State Party concerned. That State Party may respond with any observations it chooses to the Committee.

  4. 4.  The Committee may, at its discretion, decide to include any comments made by it in accordance with paragraph 3, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1.

2.2  Analysis of Working Group Discussions

14  Despite the similarities between Article 19 of the draft Convention and Article 40 CCPR, and despite the establishment of comparable reporting procedures under various other human rights treaties, such as Article 18 CEDAW and Article 9 CERD, consensus on paragraphs 3 and 4 of this article was only reached in the Third Committee meeting of the General Assembly in 1984.12 The debate focused primarily around the words ‘comments or suggestions’ in paragraphs 3 and 4. Some States, particularly the delegation of the Soviet Union, supported by the delegation of the Ukrainian SSR and the German Democratic Republic, were against the idea of authorizing the Committee to make ‘comments and suggestions’ on the report of States parties and to include such ‘comments and suggestions’ in its annual report to the General Assembly. They proposed to replace the disputed terms with ‘general comments’ and ‘comments’ respectively.

15  The Working Group of the Human Rights Commission did not deal with the supervisory mechanism of the Convention in its sessions between 1978 and 1980. However, the written comments made by several States in 1978 regarding Article 16 of the original Swedish draft, influenced the subsequent discussions of the Working Group.13 Draft Article 16 provided for a system which required States parties to submit reports to the HRC established under Article 28 CCPR upon special request only.14 Austria welcomed the reporting system as proposed in the original Swedish draft and stated that it would be undesirable to establish another obligation of regularly submitting reports, since the number of reporting procedures under international human rights law had sharply risen over the last years.15 The USA and Switzerland also supported draft Article 16 and the idea of the HRC as monitoring body of the CAT. The delegation of France, on the other hand, considered the proposed arrangement legally unsatisfactory, since the two instruments concerned are different and the States parties would not necessarily be the same.16

16  In 1981, in a pre-sessional meeting of the Working Group, the Netherlands presented a new implementation proposal in the form of amendments to the original Swedish draft.17 It was the first proposal that provided for the establishment of a new Committee (p. 513) composed of members of the HRC. Thus, according to this proposal the States parties would submit their reports to the new Committee.

17  In 1982 the Working Group began its actual deliberations on the reporting procedure basing its discussion on draft Article 29 of the Swedish proposal for implementation provisions.18 This proposal had incorporated some of the State comments made in 1978 and, instead of referring to the HRC as its implementation organ, provided for a Committee against Torture composed of nine members. Several delegations supported the proposal contained in draft Article 29 according to which States would be required to submit reports and other information relating to the application of the Convention to the new Committee.19 Other States objected to the inclusion of ‘other information’ in the provision. Consequently, the Brazilian delegation submitted a proposal amending draft Article 29 which did not explicitly request States to submit other information. The proposal was further amended according to the discussion in the Working Group.20 The revised version which authorized the Committee in its second paragraph to transmit comments and suggestions to the States parties was accepted by the Swedish delegation and no other delegation objected to the new text.21

18  Article 18 of the alternative proposal for the implementation provisions submitted by the Chairman-Rapporteur did not contain any new elements but simply reflected the outcome of the discussions concerning Article 29 of the Swedish proposal that had taken place.22

19  In 1983, the Working Group based its deliberations regarding the implementation mechanism on the four draft implementation provisions submitted by the Chairman-Rapporteur reflecting the outcome of the 1982 Working Group discussion on the reporting procedure under Article 19.23 According to Article 19(3) States parties were allowed to submit to the Committee observations on any comments or suggestions that may be made in accordance with paragraph 2.

20  The question of whether the implementation procedures under the Convention, including the reporting mechanism, should be mandatory or optional was a central point of discussion and disagreement. Most States supported a mandatory nature of the implementation organ and consequently also a mandatory reporting procedure. Some delegations were in favour of an optional complaints procedures, but welcomed the mandatory reporting procedure. A third group of States was of the opinion that all implementation provisions should be optional.24 An alternative suggestion by the Ukrainian Soviet Socialist Republic proposed to insert a clause in paragraph 1 which only obliged States parties who have recognized the Committee’s status to report on the measures taken.25

21  More specifically, the delegation of Australia stressed that reporting ‘whenever new measures have been taken’ would be too burdensome for States parties and (p. 514) therefore suggested the establishment of a periodic reporting cycle.26 Many States supported Australia’s proposal, while others stated that the existing obligation to report periodically under other human rights treaties was already burdensome for many countries. As a result, the Chairman submitted several new proposals which took into account the outcomes of the discussion.27 The last proposal, establishing a reporting periodicity of four years, did not meet any objections from the Working Group.28

22  Furthermore, the discussion on draft Article 19 focused on the word ‘measures’. There was general agreement among the delegations that this term did not mean any limitation in scope but was intended to include legislative as well as judicial, administrative, and other measures.29 Moreover, the Australian delegation, requesting clarification on paragraphs 2 and 3, stated that it was not clear if the reports would lead to a dialogue between the Committee and the State party concerned. Following interventions by other delegations, Australia submitted an informal suggestion to reformulate the latter paragraphs.30 This suggestion was taken into consideration by the Chairman-Rapporteur who subsequently submitted consolidated new text proposals.31 The Working Group delegations agreed on a final version.32

23  During the 1984 Working Group, the USSR withdrew its previous demands that all implementation procedures be optional and objected only to the Article 20 inquiry procedure.33 This meant that an agreement had been reached between all delegations regarding the mandatory reporting procedure under Article 19. However, the USSR stated that it disagreed with the present formulation of paragraphs 3 and 4 authorizing the Committee to, first, make such ‘comments or suggestions’ on the report of whichever State party it considers appropriate and, secondly, to include such ‘comments or suggestions’ in its annual report to the General Assembly. The Soviet delegation, supported by the delegation of the Ukrainian Soviet Socialist Republic and the German Democratic Republic, proposed replacing the words ‘comments or suggestions’ by the words ‘general comments’ in accordance with Article 40 CCPR. However, the majority of speakers wished to keep the formulation ‘comments or suggestions’, which had met with no opposition during the prior Working Group sessions. Several delegations stressed that, in contrast to the CCPR, the CAT was more specific and should therefore provide that appropriate comments can be made by the CAT Committee.34

24  Furthermore, the States discussed whether the States parties’ reports could be transmitted to the General Assembly. India suggested the following additional sentence to paragraph 4: ‘If so requested by the State Party concerned, the Committee may also transmit a copy of the report submitted by the State under paragraph 1.’35 The proposal was accepted by the Working Group and the sentence added to paragraph 4. Nevertheless, there was still disagreement on the terms ‘comments or suggestions’ and the draft Article could not be adopted at this stage.36

(p. 515) 25  By the time the Working Group presented its text to the Human Rights Commission in February 1984, it had reached consensus on all articles except on paragraphs 3 and 4 of Article 19 and Article 20.37 Herman Burgers, the Chairman-Rapporteur of the Working Group, handed over the task of finalizing the text to the Commission.38

26  At the Commission’s thirty-second meeting, the Federal Republic of Germany stated that the procedures provided for in Articles 19 and 20 were the absolute minimum needed to ensure the effectiveness of the enforcement mechanisms and joined the USA in expressing their regret that, although a consensus of a large majority within the Working Group had been reached, some States had refused to accept Article 19(3) and (4) as well as Article 20. In fact, the representative from the USA accused the two objecting delegations, the Soviet Union and the Ukrainian Soviet Socialist Republic, of blocking consensus on the remaining articles. The German Democratic Republic, however, seriously objected to what it saw as the broad scope of procedures under Articles 19 and 20, noting that this delegation saw it as an infringement on State sovereignty.39

27  The following day, at the Commission’s thirty-third and thirty-fourth meetings, Uruguay, Argentina, Switzerland, and Australia supported the current version of paragraphs 3 and 4 of Article 19 and stated that in their opinion the Committee should be empowered to make any ‘comments or suggestions’ it considered appropriate; to forward them to the State party concerned; and to include them in its annual report.40 The USSR, supported by the delegation of Bulgaria, objected to this version, preferring the replacement of the term ‘comments or suggestions’ with ‘general comments’. It was proposed that this wording would avoid the risk of interference in internal affairs, deemed inherent to the expression ‘comments or suggestions’.41 Italy suggested a compromise solution which would replace ‘comments or suggestions’ by the word ‘comments’ only.42

28  Rather than voting on Articles 19 and 20 or renewing the mandate of the Working Group in order to continue debate on these articles, the Commission submitted the draft Convention as it stood, with the unresolved language in square brackets, to the General Assembly.43 It did so by adopting a resolution introduced by Finland and the Netherlands, based on consultations with delegations from different regions.44 After a seven-year process, many delegations were eager for the adoption of a final draft. Further, many members of the Commission had not participated in the Working Group and were not closely familiar with the concerns involved in the discussion.45

29  Pursuant to the above-mentioned resolution, the Commission transmitted the report of the Working Group46 as well as the summary records of the Commission’s debate on the item during its fortieth session to the General Assembly.47 Additionally, the Secretary-General invited all States to communicate their comments on the draft (p. 516) Convention.48 Australia, Belgium, Canada, Denmark, France, Italy, the Netherlands, Sweden, Switzerland, the UK, the USA, Cyprus, Greece, Luxembourg, and Spain expressed their support for adopting Article 19(3) and (4) as drafted including the expression ‘comments or suggestions’.49 Some of them emphasized at the same time that the implementation procedures should be mandatory. Italy expressed its opinion that these provisions would render the dialogue between the Committee and the reporting State more effective and added that the gravity of torture and other similar treatment or punishment does require more advanced implementation provisions than those established by Article 40 CCPR and its OP.50 Finland, New Zealand, Norway, Ireland, and the Syrian Arab Republic expressed overall support and acceptance of the text but did not specifically mention Article 19(3) and (4).51 Thailand and Venezuela, however, objected to the wording of the respective paragraphs and to the mandatory implementation mechanisms, stating that it would bear the risk of interference in internal affairs of member States.52

30  At its thirty-ninth session in September 1984, the General Assembly formally dealt with the draft Convention. The Netherlands chaired several informal meetings in an attempt to reach a consensus on Articles 19 and 20.53 These meetings revealed that Western and Latin American States, along with some Asian and African States, supported the language of the Articles as they stood. The USSR and other Eastern European States were willing to adopt the Convention, but only if the procedures in question were made optional and if their proposal was adopted for the wording of Article 19. Support for expedited adoption of the Convention was not as robust among the general membership as it had been among the members of the Human Rights Commission. Objections were raised with regard to other Articles of the Convention, and some delegations favoured a return to the drafting table.

31  These considerations compelled Argentina, the Netherlands, and Sweden immediately to propose the adoption of the Convention and to submit, along with Bolivia, Colombia, Costa Rica, Denmark, the Dominican Republic, Finland, Gambia, Greece, Samoa, Norway, and Spain, a draft resolution to that effect. The Third Committee of the General Assembly thus included, in its annex, the text of the Working Group, without the respective brackets in Article 19 and 20.54

32  In reaction to these developments, the Ukrainian Soviet Socialist Republic, supported by Afghanistan, Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Mongolia, Poland, the USSR, and Vietnam, introduced amendments to the draft resolution which contained the terms ‘general comments’ instead of ‘comments or suggestions’ in Article 19(3) and only ‘comments’ instead of ‘comments or suggestions’ in Article 19(4).55 In addition, the Soviet Union and the Byelorussian Soviet Socialist Republic submitted other amendments to the draft resolution.56

(p. 517) 33  Eventually, the draft sponsors chose to seek consensus rather than further pursue confrontation.57 The draft as it stood would have resulted in several negative votes among the Soviet bloc and many abstentions from African and Asian States. This could have seriously weakened the chances for wide adherence to the Convention. Alternatively, there might have been no conclusive vote at all, which would have led to the reopening of the debate and a likely watered-down Convention. Since the sponsors regarded many of the demands put forth by the Soviet Union and other Eastern States to be unacceptable, they chose to compromise by deleting the words ‘or suggestions’ contained in Article 19(3) and (4). Following this amendment, the Chairman made clear that all other proposals should be withdrawn.58 Nevertheless, the sponsors later also accepted that the word ‘general’ be placed before ‘comments’ in Article 19(3). This final amendment was also a compromise, made in exchange for the complete withdrawal of all other amendments by the Byelorussian Soviet Socialist Republic.59 The orally revised draft resolution was thus adopted by the Third Committee without a vote.

34  On 10 December 1984 the resolution as submitted by the Third Committee was unanimously adopted by the General Assembly.60

3.  Issues of Interpretation

3.1  Traditional Reporting Procedure

35  The traditional reporting procedure consists of four steps: the submission of the report by the State; the preparation of list of issues (LOIs) by the treaty body and their transmission to the State; the submission of written replies to the LOIs by the State; and, finally, the so-called ‘constructive dialogue’, ie the examination of the report and the adoption of concluding observations. As explained below, a different procedure applies for those States that have accepted to report under the new simplified reporting procedure (see 3.2 below).

3.1.1  Submission of States Reports (Article 19(1))

36  The terminology used by Article 19(1) CAT does not correspond to the practise of the HRC and other treaty bodies. In addition to the first (initial) reports, all treaty bodies refer to the subsequent regular reports as periodic reports, under Article 19(1) CAT they are called ‘supplementary reports’. The term ‘other reports’ in Article 19(1) CAT refers to non-regular reports, which are submitted in response to a special request by the Committee. While the HRC calls them supplementary and emergency reports,61 the CAT Committee avoided both terms. As it will be seen below, it requests ‘additional reports’ if the information contained in initial or periodic reports is not sufficient, and ‘special reports’ in particularly serious or emergency situations.

37  Moreover, for States that have accepted the simplified reporting procedure the written replies to the LOIPR (list of issues prior reporting) constitute the State party’s report and fulfil its reporting obligations under Article 19 (see 3.2, § 95 below).

(p. 518) 3.1.1.1  Meaning of ‘reports on the measures they have taken’—Initial Reports

38  Initial reports shall contain information on the measures that States parties have taken ‘to give effect to their undertakings under this Convention’. The difference in wording between Article 19 CAT and Article 40(1) CCPR (‘give effect to the rights recognized herein’) can be explained by the fact that the CAT provides for specific obligations to prevent torture and to bring the perpetrators of torture to justice, rather than for additional human rights. This means that States should report on an Article-by-Article basis on all the measures taken to implement the respective provisions of the Convention. Although no provision equivalent to the second sentence of Article 40(2) CCPR was included in Article 19 CAT, States should report on any factors and difficulties which affect the implementation of the Convention.62 As envisaged by Rule 65(4) States parties have to follow the Guidelines of the Form and Content of Initial Reports, as lastly amended in 2005.63 As of 1991, these Guidelines also include the so-called Consolidated Guidelines for the Initial Part of all State Reports,64 which were adopted in 1990 with the aim of coordinating the reporting obligations under the various human rights treaties.65 According to the Guidelines, the initial report should be presented in two parts. The first part should include information of a general nature and the second should provide information in relation to each of substantive article of the Convention.66 For initial reports, States parties should respect the word limit of 31,800 words.67

3.1.1.2  Meaning of ‘supplementary reports’—Periodic Reports

39  The second type of report is the so-called periodic or ‘supplementary’ report. It is regulated by the Committee’s Guidelines regarding Periodic Reports of 1991,68 last revised (p. 519) in 1998.69 Periodic reports shall not repeat the information contained in earlier reports, but focus instead on any new measures and developments taken. They shall give a brief general description of the legal and administrative framework within which the Convention operates, as well as on the measures taken to comply with the Committee’s conclusions and recommendations on earlier reports as well as any other additional information explicitly requested. For periodic reports, States parties should respect the limit of 21,200 words.70

3.1.1.3  Meaning of ‘other reports’

40  The third and fourth types of reports are the so-called ‘other reports’. The legal basis of the Committee’s authority to request such reports is enshrined in Article 19(1), which states that ‘States parties shall submit supplementary reports … and such other reports as the Committee may request’. The idea behind was that the Committee should not have to wait the four years between reports, but could rather request a special report from a State party when the situation in a country justified it.71 This provision has been used by the Committee for additional reports and for special reports. Additional reports are regulated by Rule 69(2). This Rule allows the Committee to request an additional report—as well as additional information—if an initial or periodic report does not contain sufficient information or the information provided is outdated. The Committee also indicates by what date the aforementioned report shall be submitted. In fact, when considering a report, the Committee must first confirm that the report contains all information required according to Rule 69 (and implicitly Article 19(1)). This check is done with the help of the reporting guidelines.72 If the information provided in the report is not sufficient, or is outdated, the Committee may request, through a list of issues to be sent to the State party, an additional report or specific information, usually to be submitted within a year’s time.73 In practice, during its first years, the Committee requested, explicitly or implicitly, additional reports from Belize, Ecuador, Cameroon, China, Libya, Chile, Afghanistan, and Nepal, mostly because the initial reports were not drafted in accordance with the guidelines of the Committee.74 Between 1991 and 1993, the Committee considered additional reports submitted by Chile, Ecuador, Cameroon, Libya, and China.75 Belize, Afghanistan, and Nepal never submitted the additional reports requested. In contrast, in emergency or similar situations that require an urgent response, the Committee has used its power under Article 19(1) to request a special report on an ad hoc basis. To date (p. 520) this has been done three times, namely in respect of Israel,76 Syria,77 and Burundi.78 In its concluding observations to Syria and Burundi, the Committee has also requested the States to submit follow-up special reports.79

41  Finally, although not explicitly mentioned in Article 19(1), States parties are also encouraged to submit a common core document,80 either before or at least with their initial reports and maintain it up-to-date throughout the reporting cycle if necessary. The same core document can be submitted to all UN human rights treaty bodies. In fact, such document was introduced with the purpose to facilitate the reporting burden of States and include in one single document all those general information that are required by all the treaty bodies. In addition to such general information, the State will have to submit all other information specifically relevant for the obligations arising from the CAT. For the common core document, States parties should respect the limit of 42,400 words.81

3.1.1.4  Reporting Periodicity

42  Whereas Article 40(1) CCPR requires States to submit initial reports within one year and further reports ‘whenever the Committee so requests’, Article 19(1) CAT is more specific. In addition to initial reports within one year,82 it provides for ‘supplementary reports every four years’ and for ‘such other reports as the Committee may request’. The four-year reporting cycle takes into account the negative experiences of the CERD-Committee with a two-year reporting cycle,83 and the practice of the HRC that in 1981 had established a five-year cycle.84 The specific date by which the State party examined should submit the next periodic report is normally indicated at the end of the concluding observations.85 State reports are public document and are available on the Committee’s website.

(p. 521) 43  In practice, however, the reporting periodicity is not always respected (see 3.3 below). In addition, the reporting cycle may de facto vary depending on whether the Committee applies Rule 65(2) on the consolidation of reports, which allows the State party to submit two or more periodic reports at the same time (see 3.3.1 below); requests additional information or a follow-up report within one year (see 3.1.6 below); as well as whether the State party has accepted the simplified reporting procedure (see 3.2 below).

3.1.2  Additional Sources of Information

44  The State report is the first source of information. However, the Committee, particularly the Country rapporteurs, bases its work on collective information from various sources. As an additional source of information, the Committee often uses official UN documents, such as information from the HRC and the Special Rapporteur on Torture.86

45  Similarly, of crucial importance for the work of the Committee are the information submitted by civil society organizations and media reports. In practice, the input of NGOs often takes the form of shadow reports, also called alternative or parallel reports. These reports are often structured on Article-by-Article basis similarly to the reports of States parties, but may also focus on specific thematic issues. NGOs may engage with the Committee by providing written information for the LOIs and LOIPR, for the examination of the State party’s report, as well as for the follow-up phase.87 NGOs that have submitted written information for the examination of a give State party’s report may also meet with the Committee in formal in-session briefings of around one hour. The Committee encourages NGOs to coordinate their presentations in order not to repeat each other’s information. This role is currently carried out by the World Organisation against Torture (OMCT).88 In addition, NGOs can organize informal briefings with CAT members. These are not in-session and there is no interpretation provided by the OHCHR.

46  With the exception of the confidential reports, information sent by NGOs to the Committee is published on the OHCHR website. This practice allows the State party to be better prepared to respond to questions that may be posed by the Committee on the basis of such information. It is not uncommon for Committee members themselves to refer to information provided by international NGOs such as Amnesty International, Human Rights Watch, the Association for the Prevention of Torture (APT), the OMCT, and a great number of national NGOs.89 Similarly, information may be provided by NHRIs and NPMs.90

47  In the literature, it has been noted that the use of additional sources has made the system ‘increasingly triangular’, shifting from a bilateral dialogue between the State and (p. 522) the treaty bodies to a dialogue in which the State is confronted with potentially conflicting information provided by other sources.91

3.1.3  Pre-sessional Preparation: List of Issues

48  Once the State party has submitted its report, the Committee examines it under Article 19(3) starting a dialogue with the State’s representatives. To this extent, the two Country rapporteurs prepare the list of issues (LoIs) to be sent to States whose periodic reports will be considered during the upcoming sessions. The Committee does not issue LoIs for initial reports. The LoIs are intended to clarify and update certain questions and issues as well as to focus, without restricting, the dialogue with the States on matters of particular interest for the Committee.92 The list should be uniform on the one hand, but tailored with details relating to the specific circumstances of each State party. They are prepared, inter alia, on the basis of the information contained in the report, the Committee’s past concluding observations and information from other treaty bodies, special procedures and from the UN system as well from others sources, including regional human rights mechanisms, NHRI, NPMs, and NGOs and adopted by the Committee in plenary. States parties reply in writing but also send national delegations to Geneva during the session in order to discuss the issues orally.

49  For States that have accepted the simplified reporting procedure the LoIs is adopted by the Committee prior to the State report (see § 93 below).

3.1.4  Consideration of States Reports by the Committee (Article 19(3))

3.1.4.1  The Procedure of the ‘constructive dialogue’

50  The consideration of State reports takes the form of a constructive dialogue aiming to give the Committee a picture of the situation with regard to torture and other forms of ill-treatment in the State party.

51  The presentation and examination of a report takes place in a public session over two consecutive half-day, which is live streamed via the UN Web TV. First, the delegation presents the report and provides additional information on new legislative developments or other facts that occurred after the submission of the report and responds to the LoIs. Next, the Country rapporteur and other Committee members make initial observations and ask additional questions to the State party which are subsequently answered by the delegation. Then, the Committee members can address other questions to the State representatives and make their final remarks. They can also raise matters that had not been referred to in the LoI. On the following day, the second meeting will be devoted to the replies of the State party’s representatives to the questions posed by the members during the first meeting as well as to any follow-up issues that might be raised by the Committee.93

52  The number of reports considered in each session varies from three up to six. At its forty-third session, the Committee decided that States parties’ reports will be scheduled for examination according to the following order of priority: initial reports, reports presented under the simplified reporting procedure, long overdue periodic reports, and date of submission of periodic reports. If deemed necessary, the Committee may decide to prioritize a report over others.94

(p. 523) 53  In 2014, further to the GA Resolution 68/268 of 2014, the Chairpersons of the treaty bodies put forward recommendations aimed at harmonizing treaty bodies’ practices and adopted a Guidance note on constructive dialogue.95 Though pointing out the need to respect the Convention’s ‘specificities’ in the dialogue, the Committee adopted such Guidance note at its fifty-fifth session in 2014.96

3.1.4.2  Attendance from Committee Members and Country Rapporteurs

54  According to the Committee’s practice, members do not participate in the consideration of reports of States parties of which they are nationals.97 They are, however, present in the room. But in the past, under Chairperson Joseph Voyame, the nationals in question even had to leave the conference room.

55  At its fifth session in 1990, the Committee, on the basis of Rule 61, decided that the Chairperson should designate, in consultation with the Committee members, Country rapporteurs for the consideration of State reports.98 Normally, the Committee appoints two of its members to act as Country rapporteurs for each report. One member can act as rapporteur for more than one report during the same session. The Country rapporteurs would be responsible for preparing the discussion; formulating the main questions, remarks, and concluding observations; and would be involved with drafting the LoIs.99 The names of the Country rapporteurs with their respective countries is indicated in the annual reports.100

3.1.4.3  Attendance by States Parties

56  Rule 68 governs the attendance by States at the examination of reports.101 In order to make the constructive dialogue possible, representatives of States are requested to attend the sessions in which their reports are being considered. After being duly notified by the Committee,102 if a State party fails to send a representative to the session, the Committee may, at its discretion, decide either to postpone the consideration of the report and notify the State party that, at a specified session, it intends to examine the report (Rule 68(2)(a)); or alternatively, to proceed at the session originally specified and submit to the State party its provisional concluding observations. The final concluding observations should be adopted at its following session (Rule 68(2)(b)).

57  In practice, the Committee has made used of both options. For example, in 2005 at its thirty-fourth session, the Committee was not able to consider the initial report of Togo due to the absence of its representatives and, hence, decided to postpone such an examination to the thirty-sixth session in May 2006 under Rule 68(2)(a). Togo excused (p. 524) its absence by referring to the great difficulties the country faced at the scheduled time, which did not allow the Government to appoint a delegation and make the resources available for such a delegation to travel. In taking this decision, the Committee emphasized the importance of having the State delegation present during the examination of its report, particularly the initial report which was, in this case, over ten years overdue.103 Also, on several occasions the Committee examined a report without representatives of the concerned States parties being present (Rule 68(2)(b)). For example, this occurred in 2003 for the initial report of Cambodia, Cape Verde, and Antigua and Barbuda,104 and in 2012 and 2016 for the special reports of Syria and Burundi respectively.105

58  In order to facilitate States representatives’ participation, where internet connections and time differences allow, the Committee may agree to conduct the dialogue via a videoconference.106

3.1.4.4  Request for Additional Reports or Information

59  If the report does not contain all the information required, the Committee may, according to Rule 69(2), request the State party in question to provide an additional report.107 States can also be invited to withdraw their report if the latter is below the requested standard. For example, in November 1993 after a preliminary dialogue with the representative of Belize, the Committee decided to request the Government of this State party to withdraw the report submitted and to hand in a revised version of its initial report together with its second periodic report, which was also overdue, in a single document. In fact, the report108 was extremely brief and did not contain any of the background information the Committee needed for its work.109

3.1.4.5  Meaning of ‘general comments on the report’—Concluding Observations

60  After the dialogue with the delegation, as provided by Article 19(3), the Committee adopts its ‘general comments on the report’ and forwards these to the State party concerned which in reply may submit to the Committee any comment that it considers appropriate. This wording—simply referring to ‘general comments’ on the (p. 525) one side, but then simultaneously adding that general comments are ‘on the report’ and shall be forwarded ‘to the State Party concerned’—has raised the question as to whether Article 19(3) authorizes the Committee to issue comments addressing the situation of one specific State party or rather allows it to adopt only comments generally referring to all States parties.

61  As the drafting of Article 19 CAT was strongly influenced by the experiences of the HRC during the Cold War,110 it is worth drawing a comparison with such instrument. Article 40(4) CCPR provides that the HRC shall study State reports and transmit ‘its reports, and such general comments as it may consider appropriate to the States parties’. It is clear from a systematic interpretation of this provision that the examination of a State report is only completed when the HRC has summarized its conclusions as to the State party’s compliance with its obligations under the Covenant in its own report and has sent it to all States parties. In addition to these country-specific reports, the HRC is entitled to formulate general comments on the basis of its experience in the State reporting procedure. These general comments are not country-specific but provide the HRC with an opportunity to clarify the meaning of the various provisions of the Covenant, above all the meaning of the human rights contained therein. While the HRC started in 1981 adopting general comments, first on the reporting obligations of States parties and soon thereafter on the meaning of individual rights, the Cold War prevented it for more than ten years from complying with its task of completing the reporting procedure by adopting country-specific reports with respective conclusions and recommendations.111 Nevertheless, since 1984 it has become common practice for individual HRC members, first introduced by experts from Western States, to submit a quasi-concluding personal statement on the human ri