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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.20 Inquiry 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, interpretation — Fact-finding and inquiry

(p. 540) Article 20  Inquiry Procedure

  1. 1.  If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.

  2. 2.  Taking into account any observations which may have been submitted by the State Party concerned, as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.

  3. 3.  If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State party, such an inquiry may include a visit to its territory.

  4. 4.  After examining the findings of its member or members submitted in accordance with paragraph 2 of this article, the Committee shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.

  5. 5.  All the proceedings of the Committee referred to in paragraphs 1 to 4 of this article shall be confidential, and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24.

1.  Introduction

1  At the time of its adoption, the inquiry procedure was the most innovative element of the monitoring mechanisms of the Convention and had no precedent in other human rights treaties. As will be explained below, the idea of carrying out confidential investigations into a systematic practice of serious (gross) and reliably attested human rights violations is based on the so-called 1503 procedure of the former Sub-Commission on the Promotion and Protection of Human Rights1 and a number of other mechanisms, such as for example the ILO’s supervisory procedures.2 Since its first adoption, the procedure has become a model for later treaties and to date five UN human rights treaties contain a similar mechanism.3

2  Because of its innovative character, this provision proved to be one of the most controversial one during the drafting history. The idea of an inquiry procedure was strongly opposed by the Soviet bloc, who criticized it for the broad definition of ‘reliable’ information and because it envisaged a fact-finding mission in the territory of the State party concerned. In the end, a compromise was reached, and Article 20 provides that although the inquiry procedure is not subject to an explicit declaration by States parties to accept this competence of the Committee against Torture (CAT Committee or Committee)—as is the case with the complaints mechanism—any State party may decide to ‘opt out’ by means of a specific reservation in accordance with Article 28. Originally, only Socialist States and Chile made such an ‘opting out’ reservation. With the exception of Afghanistan and China, all States later withdrew their respective reservations made during the late 1980s. There were, however, other States that used this option when acceding to the Convention during the 1990s and even in more recent years, as in the cases of Equatorial Guinea, Mauritania, and Syria. As of December 2017, the procedure applied to 148 States parties, with fourteen States having opted out.4

3  The Committee has so far concluded ten inquiry procedures. The majority of them have been based on information provided by non-governmental organizations (NGOs), such as Amnesty International (AI), Human Rights Watch (HRW), and national organizations. The inquiry procedure, therefore, resembles to some extent an actio popularis by NGOs.

4  Below, after an overview of the controversial discussions that took place during the drafting of Article 20, the article will analyse its scope of application as well as the functioning of the procedure in light of the inquiry procedures concluded so far by the Committee.

(p. 542) 2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

5  Original Swedish Draft (18 January 1978)5

Article 17

If the Human Rights Committee receives information that torture is being systematically practised in a certain Sate party, the Committee may designate one or more of its members to carry out an inquiry and to report to the Committee urgently. The inquiry may include a visit to the State concerned, provided that the Government of that State gives its consent.

6  Swedish Proposal for Implementation Provisions (22 December 1981)6

Article 30

  1. 1.  If the Committee receives reliably attested information from any source indicating that torture is being systematically practised in the territory of a State party to the present Convention, the Committee, after giving that State party the opportunity to state its views on the situation, may designate one or more of its members to make a confidential enquiry and to report to the Committee urgently.

  2. 2.  An enquiry made in accordance with paragraph 1 of this article may include a visit to the territory of the State party concerned, unless the Government of that State party refuses to give its consent.

7  Draft Implementation Provisions, Submitted by the Chairman-Rapporteur of the Working Group as Possible Alternative to the new Swedish Proposals (1 February 1982)7

Article 19

  1. 1.  If the group established in accordance with article 17 receives information from any source which in its view appears to indicate that torture is being systematically practised in the territory of a State party to the Convention, the group shall invite that State party to submit observations with regard to the information concerned.

  2. 2.  On the basis of all relevant information available to the group, including any observations which may have been submitted by the State party concerned, the group may, if it decides that this is warranted, designate one or more of its members to make a confidential enquiry and to report to the group urgently.

  3. 3.  An enquiry made in accordance with paragraph 2 of this article may include a visit to the territory of the State party concerned, unless the Government of that State party when informed of the intended visit, does not give its consent.

  4. 4.  After examining the report of its member or members submitted in accordance with paragraph 2 of this article, the group may transmit to the State party concerned any comments or suggestions which seem appropriate in view of the situation.

  5. 5.  All the proceedings of the group under this article shall be confidential.

(p. 543) 8  Four Draft Articles on implementation, with the explanatory note, submitted by the Chairman-Rapporteur (24 December 1982)8

Article 20

  1. 1.  If the Committee receives information from any source which in its view appears to indicate that torture is being systematically practised in the territory of a State party, the Committee shall invite that State party to submit observations with regard to the information concerned.

  2. 2.  On the basis of all relevant information available to the Committee, including any observations which may have been submitted by the State party concerned, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential enquiry and to report to the Committee urgently.

  3. 3.  An enquiry made in accordance with paragraph 2 may include a visit to the territory of the State party concerned, unless the Government of that State party when informed of the intended visit, does not give its consent.

  4. 4.  After examining the report of its member or members submitted in accordance with paragraph 2, the Committee may transmit to the State party concerned any comments or suggestions which seem appropriate in view of the situation.

  5. 5.  All the proceedings of the Committee under this article shall be confidential.

9  Draft Resolution Submitted by the Netherlands to the General Assembly (23 November 1984)9

Article 20

  1. 1.  If the Committee receives information which appears to it to contain reliable indications that torture is being systematically practised in the territory of a State party, the Committee shall invite that State party to submit observations with regard to the information concerned.

  2. 2.  Taking into account any observations which may have been submitted by the State party concerned as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.

  3. 3.  If an inquiry is made in accordance with paragraph 2, the Committee shall seek the co-operation of the State party concerned. In agreement with that State party, such an inquiry may include a visit to its territory.

  4. 4.  After examining the findings of its member or members submitted in accordance with paragraph 2, the Committee shall transmit these findings to the State party concerned together with any comments or suggestions which seem appropriate in view of the situation.

  5. 5.  All the proceedings of the Committee referred to in paragraphs 1–4 shall be confidential. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, at its discretion, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24.

(p. 544) 10  Amendment to the Draft Resolution by the Byelorussian Soviet Socialist Republic

Article 28

  1. 1.  Each State may, at the time of the signature or satisfaction of this Convention or accession thereto, declare that it does recognize the competence of the Committee provided for in article 20.

  2. 2.  Any State Party having made a reservation in accordance with the preceding paragraph may, at any time, withdraw this notification to the Secretary-General of the United Nations.

2.2  Analysis of the Discussions in the Working Group and the Third Committee

11  Because Article 20 had no exact precedent in the CCPR, or in other human rights instruments,10 it proved to be one of the more controversial provisions in the Working Group; so much so that a consensus on the text was only reached at the Third Committee meeting in 1984.11 Although the specific language and procedures contained in Article 20 were innovative, the idea of an ex officio procedure to examine gross and systematic violations of human rights by States parties was not completely novel. The Article 20 procedure has its roots in Resolution 1503 of the ECOSOC (1970)12 and a number of other mechanisms, such as for example the ILO’s supervisory procedures.13

12  The Working Group did not deal with the supervisory mechanism of the Convention in its sessions between 1978 and 1980. However, the written comments of several States in 1978 regarding Article 17 of the original Swedish draft14 shaped the subsequent discussions within the Working Group.15 This original draft, which envisioned the Human Rights Committee (HRC) as the supervisory mechanism, allowed for visits to the State party provided that the Government of that State gave its consent.16 Austria and Switzerland supported the draft Article, with Switzerland proposing that the procedure be strengthened by shifting the presumption to one of consent, so that a State party under inquiry would have to object actively if it opposed such a visit.17 The German Democratic Republic objected to the draft Article because it considered the powers granted to the HRC to be outside the scope of its mandate as derived from the CCPR.18 At this early stage, France and the USA also voiced objections, but their concerns were with specific provisions of the procedure rather than with the existence of the procedure itself. France felt that the HRC should not begin an inquiry at all without first obtaining the State party’s consent. The proposal submitted by the USA would have required a State party expressly to declare its recognition of the implementation organ’s competence to carry out such inquiries. Once it had done so, however, that State party would be bound to accept any visits the organ deemed necessary.19 (p. 545) None of these ideas were explicitly adopted in the 1981 draft, although that draft did include a provision requiring that the inquiry itself be confidential.20

13  In its 1982 session, the Working Group began its examination of the inquiry procedure for allegations of systematic torture,21 basing its discussion on Article 30 of the Swedish proposal for implementation provisions.22 This draft had incorporated some of the States’ comments made in 1978 and no longer referred to the HRC as its implementation organ.

14  Some delegations criticized draft Article 30 for not clarifying that the procedure should involve three distinct steps. They noted that the implementation organ should, first, consider whether or not there were sufficient reasons for addressing itself to a State party. It should then take into account all relevant information at its disposal in order to consider whether it would be warranted to initiate an inquiry. Finally, the organ should consider, in the light of the results of the inquiry, whether to transmit any comments or suggestions to the State party concerned. The delegations further noted that the draft Article failed to clarify that each phase of the proceeding should be confidential.23

15  One delegation suggested that the grave nature of torture justified further strengthening of the procedure. It proposed granting the implementation organ greater power to go public if the Government clearly failed to comply with the necessary measures of its suppression (action to prosecute) after one year.24 It highlighted criminal prosecution as one such measure; the lack of which could trigger publication of a summary account of the inquiry in its public report to the ECOSOC.25 Some delegations disagreed with this proposal, making a distinction between the obligation to submit cases to competent authorities to decide about prosecution, which was required by the Convention, and the obligation to prosecute. It was also noted that adequate measures to suppress torture may often be of a different character than criminal prosecution.26

16  At this same 1982 session, Sweden submitted a revised text to the Working Group.27 Under this draft, the Committee could contact a State party pursuant to information which appeared to indicate, rather than that which simply indicated, the practise of systematic torture. Furthermore, the draft Article provided that the decision to initiate an inquiry should be made on the basis of all relevant information available to the Committee, including any explanations provided by the State party concerned. It also gave the implementation organ the option of transmitting its comments or suggestions to the State party; and specified that all proceedings under the Article were to be confidential. The revision also, without stated explanation, removed the requirement that the information received be ‘reliably attested’, an issue that would resurface under slightly different language in the next Working Group discussion.28

17  Some members favoured empowering the Committee by increasing its ability to analyse the information independently in order to discern whether a systematic practice of torture was taking place and, if so, whether it warranted an inquiry. Amendments to (p. 546) this effect were presented and accepted.29 The Working Group also replaced ‘explanations’ in paragraph 2 with a more neutral term; included the clause ‘when informed of the intended visit’ in the last sentence of paragraph 3; and substituted ‘does not give its consent’ for ‘refuses to give its consent’.

18  The Working Group continued its discussion in 1983 and, as a basis for its deliberations, used the Chairman’s four draft Articles on implementation30 which had been reformulated to incorporate the changes made to Article 20 adopted at the 1982 session.31 First, the Working Group rejected the Ukrainian proposal to make the procedure apply only to States parties that had announced their recognition of the Committee’s status.32 However, because many delegations deemed it important to include a requirement of reliability for the information or source, paragraph 1 was redrafted so that the new text required information to contain ‘reliable indications that torture was being systematically practised’.33 Paragraph 2 was amended to highlight the importance of observations submitted by the State party. Further, in order to appease several delegations that wanted the Committee to seek cooperation with the State party in order to initiate the inquiry, paragraph 3 was redrafted to read: ‘If an enquiry is made … the Committee shall seek the co-operation of the State party concerned. In agreement with that State party, such an enquiry may include a visit to its territory.’34

19  Debate ensued as to whether the Committee should submit the final report to the State party. Some felt that it should, whereas others noted that the confidentiality of some sources might be compromised. The delegations agreed that the State party had, at least, a right to know the Committee’s findings as a result of the inquiry. Consequently, the new version of paragraph 4 referred explicitly to the Committee’s findings and made it mandatory for them to be transmitted to the State party.35 The 1982 draft had not required the Committee to transmit anything at all; it had merely given the Committee the option of transmitting comments or suggestions, without mention of the findings themselves.

20  While there was consensus within the Working Group as to confidentiality during the proceedings, no conclusions were reached at this stage as to whether confidentiality need be maintained once the inquiry had been completed. The Working Group decided to give the Committee the option of publicizing a summary of the results and added the following provision to paragraph 5: ‘After such proceedings have been completed with regard to an enquiry made in accordance with paragraph 2, the Committee may, at its discretion, decide to include a summary account of the results of the proceedings in its annual report … ’36

21  At this phase, the Working Group did not reach a decision on whether Article 20 and other implementation procedures should be optional or mandatory. Most delegations supported the mandatory nature of the inquiry procedure and all other implementation procedures, willing to cede the optional character only in the case of individual complaint procedures. Some were adamant that without strong implementation procedures, (p. 547) the Convention would lose its effectiveness. Making implementation optional, they said, was tantamount to allowing a qualified commitment to the struggle against torture. In contrast, some delegations, including the USSR, felt that mandatory implementation procedures would make it difficult for the Convention to gather worldwide support. The Soviets added that such procedures were unnecessary for States already bound by similar procedures under the CCPR. They favoured removing those procedures from the draft Convention and placing them in an optional protocol. The Ukrainian Soviet Socialist Republic proposed a compromise in which the implementation provisions were retained within the draft Convention, but Articles 17, 19, and 20 were amended so as to make them binding only on States parties that expressly accepted their competence. Meanwhile, some delegations were still not ready to make a decision.

22  This discussion, on what would prove to be the most enduring and contentious of debates, continued at the 1984 Working Group session. There, the USSR and Ukraine withdrew demands that all implementation procedures be optional, but continued to object to a mandatory Article 20 inquiry procedure.37 The German Democratic Republic supported the USSR’s position. Most delegations, however, remained strongly in favour of keeping Article 20 mandatory, and saw its existence as essential to implementation and progress in the realm of human rights treaties. Making it optional, they stated, would seriously weaken its value. They argued that sufficient safeguards had already been built into the procedure. These safeguards included requirements that there be constant cooperation between States parties and the Committee; that States must give their consent for visits; and that high standards are abided by for Committee membership as set out in Article 17. They noted further that the ILO already used such a procedure without encountering any problems. No consensus was reached at this stage and Article 20 was not adopted.

23  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 Article 20 and paragraphs 3 and 4 of Article 19.38 Jan Herman Burgers, the Chairman-Rapporteur of the Working Group, handed over to the Commission the task of finalizing the text.

24  At the Commission’s thirty-second meeting, Canada, the USA, and the Federal Republic of Germany expressed their opinion that Article 20 should be mandatory. Canada went as far as to say that a Convention without such a feature would not be worth signing. It noted that only a minority of delegations had held out for optionality, and even accused a few delegations of seeking to tie the Committee’s hands. The USA said that the only two States blocking consensus on the remaining articles were the USSR and the Ukrainian Soviet Socialist Republic.39 The German Democratic Republic, however, voiced its own serious objections to what it saw as the broad scope of procedures under Articles 19 and 20, which it considered an infringement on State sovereignty.

25  The following day, at the Commission’s thirty-third and thirty-fourth meetings, Italy, France, Senegal, Uruguay, Argentina, Sweden, Norway, Switzerland, and Australia joined the delegations supporting the view that Article 20 be mandatory.40 The USSR continued (p. 548) to object. It claimed that the inquiry procedure was unnecessary given that the systematic practice of torture, because of its widespread nature, was easily identifiable, and that specific details could already be obtained through the Commission’s other procedures. It further commented that the inquiry procedure would allow States, individuals, or NGOs to vilify publicly other States parties. This would be an unacceptable situation given that the ‘reliable indications’ provided for by Article 20(1) could easily prove to be unreliable, and thus such accusations would not only be unfounded, but would also constitute an unjustified interference in domestic affairs. It further argued for the importance of producing a Convention that could gather a broad consensus in order to ensure that States parties which did not ratify it would feel sufficiently politically isolated. Finally, the Soviets countered the claim made by the USA that it and the Ukraine were the only two delegations opposing the inquiry procedure. Claiming that other delegations had mischaracterized the division on this article, the USSR said that in fact, only Western States had supported the procedure, whereas many other States had objected. Unlike the other delegations, the USSR favoured resubmitting the draft to the Working Group, rather than passing it on to the General Assembly. Bulgaria expressed the view that, although it was not yet ready to reach a final decision, it supported the USSR and Ukrainian proposals. Senegal noted that it was an example of a non-Western State that fully supported a mandatory Article 20 procedure.

26  Several NGOs expressed their views on the draft Convention. The International Commission of Jurists, in particular, noted that it attached the greatest importance to Article 20, observing that the USSR, because it accepted Resolution 1503, had no reason to reject the procedures provided for by the Article in question.

27  Rather than voting on Articles 19 and 20, or renewing the mandate of the Working Group so that it could continue debating the Articles, the Commission sent the draft Convention as it stood to the General Assembly, with the unresolved language issues in square brackets.41 The Working Group was given authority to do so by the adoption of a resolution that was based on consultations with delegations from different geographic regions and was introduced by Finland and the Netherlands. After seven years, it was clear that many delegations were eager for the adoption of a final draft. Furthermore, the sponsors were aware that many members of the Commission had not participated in the Working Group and were not closely familiar with the concerns involved in the discussion.

28  Pursuant to the above resolution, the Commission also transmitted the report of the Working Group on the draft Convention, as well as the summary records of the Commission’s debate on the item during its fortieth session, to the General Assembly.42 Additionally, the Secretary-General invited all States to communicate to the Secretary-General their comments on the draft Convention.43 Australia, Austria, Belgium, Burundi, Canada, Cyprus, Denmark, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, the UK, the USA, and Venezuela expressed their support for adopting the text of Article 20 as drafted, which ensured that the inquiry procedure remained mandatory.44 Finland, New Zealand, Panama, and the Syrian (p. 549) Arab Republic expressed overall support or acceptance of the text but did not specifically mention Article 20 or the other implementation procedures.45 Hungary, Thailand, and Yugoslavia, however, objected to the text of draft Article 20 and/or to mandatory implementation mechanisms.46

29  At the thirty-ninth session of the General Assembly in September 1984, the Netherlands chaired several meetings in an attempt to reach a consensus on Articles 19 and 20.47 These meetings revealed that Western and Latin American States, along with some Asian and African States, supported the language of these Articles as it stood. The USSR and other Eastern European States were willing to adopt the Convention, but only if the procedures in question were made optional. Meanwhile, other African and Asian States questioned the Article 20 inquiry procedure and some favoured its deletion from the Convention altogether. Many States were not prepared to take a strong stand either way. Support for an expedited adoption of the Convention was not as robust among the general membership as it had been among the members of the Commission on Human Rights. Objections were raised with regard to other Articles of the Convention, and some States even favoured a return to the drafting table. These considerations led Argentina, the Netherlands and Sweden to propose the immediate adoption of the Convention.48

30  At the fifty-sixth meeting of the General Assembly on 3 December 1984, after the Ukraine had again proposed, unsuccessfully, that paragraph 1 of Article 20 include a requirement that a State party make a declaration recognizing the competence of the Committee to make inquiries, the Byelorussian Soviet Socialist Republic proposed a compromise. It suggested adding an Article 28 that would allow a State party to declare that it did not recognize the competence of the Committee under Article 20.49 Although the Byelorussian language would present a victory for States seeking a form of optionality, it nevertheless raised the political cost of opting out by requiring a State party to reserve explicitly out of the procedure, unlike previous proposals, which would have allowed States to ratify the Convention fully without acceding to the inquiry competence.

31  In the end, the draft sponsors chose to seek consensus rather than pursue further confrontation.50 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 debate and, probably, a watered-down Convention. Finding unacceptable many of the other demands placed by the Soviet Union and other Eastern States, the sponsors chose to compromise on Article 20, in consideration also of the misgivings expressed by several African and Asian States.

32  At the General Assembly’s sixtieth meeting, then, the Netherlands provided an oral revision of Article 20.51 The new draft shifted the requirement of reliability to the information received by the Committee, rather than to the indications of systematic torture. It proposed, instead, that those indications be well-founded. It also made clear that the (p. 550) Committee’s invitation to the State party to submit observations was for the purpose and in the service of cooperating with the State party in the examination of information. With regard to confidentiality, the new draft provided that the Committee would include the summary account after consultations with the State party concerned, rather than at its own discretion. Furthermore, it specified that even though absolute confidentiality is provided for only in the procedures detailed in paragraphs 1 to 4, the cooperation of the State party should be sought at all stages of the procedure; seeming to include, by implication, the publication of the summary as well. Perhaps most significantly, the sponsors accepted the Byelorussian amendment, thus adding an article that allowed States parties to opt out of Article 20.52

33  On 10 December, the Soviet bloc delegations withdrew their remaining amendments, and the Third Committee of the General Assembly adopted the revised draft resolution without a vote.53

3.  Issues of Interpretation

34  The procedure is governed by Article 20 and Rules 75 to 90. According to Article 20 the CAT Committee may initiate an inquiry into the systematic practice of torture in a State party. It cannot be used to address individual cases of torture, and it applies only to the practice of torture, not cruel, inhuman or degrading treatment or punishment.

35  As noted above, this provision proved to be one of the most controversial one during the drafting history. Its adoption was not only contested during the drafting history of the Convention but also in the context of the adoption of the Rules of Procedures (RoP). In contrast to the other parts, the Committee waited to consider the provisions of the RoP concerning the inquiry procedure until its second session due to the complex, sensitive, and novel nature of such procedure.54 The draft Rules were based on the provisions of the Convention and took into account relevant procedures existing elsewhere within the UN system.55

36  The inquiry procedure has four main characteristics. First, it is optional. According to Article 20 read in conjunction with Article 28, States parties may decide to ‘opt out’, ie to not accept the competence of the CAT Committee to conduct an inquiry procedure.56 Second, it is of a reactive nature, ie it can be undertaken by the Committee only after it has received reliable information about systematic practices of torture in the territory of a State party and for the purpose of investigating these allegations. The Committee cannot conduct an inquiry procedure in order to prevent torture, like the monitoring bodies created under the Optional Protocol to the CAT, ie the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) and the National Preventive Mechanisms (NPMs). Third, it is confidential. In accordance with Article 20 and Rules 78 and 79, all documents and proceedings of the Committee (p. 551) relating to its functions are confidential, similarly to all meetings concerning Article 20 which are closed. The Committee may in principle lift the principle of confidentiality and decide to publish the results of the proceedings, but, as will be explained more in detailed below, it can do so only at the very end of the procedure and under specific circumstances. Finally, the procedure under Article 20 is based on the principle of cooperation. This is well exemplified by the fact that the inquiry procedure is designed in such a way so as to require the consultation of the State party concerned at every single stage, including the country visit itself, which can be conducted only with the previous consent of the State party.

37  As illustrated in Table 1, to date the Committee has concluded ten inquiries on nine countries (twice on Egypt). All but three States (Brazil, Mexico, Nepal) have decided to keep the reports of the inquiry confidential.(p. 552)

Table 1  Overview on Inquiry Procedures

Country

Duration of the inquiry

Visit

Systematic

Torture?

Publication

Egypt

5 years, 3 months

(Mar 2013–June 2017)

Not consented

Yes

Summary

Account

(A/72/44, § 58–71)

Lebanon

6 years

(Oct 2008–Oct 2014)

8–18 April 2013

(10 days)

Yes

Summary

Account

(A/69/44, Annex XIII)

Nepal

6 years, 11 months

(Nov 2005–Oct 2012)

Not consented

Yes

Full report

(A/67/44, Annex XIII)

Brazil

5 years, 10 months

(Nov 2002–Sept 2008)

13–29 July 2005

(16 days)

Yes

Full report

(CAT/C//39/2)

Federal Republic of Yugoslavia (Serbia and Montenegro)

6 years, 10 months57

(Dec 1997–Oct 2004)

8–19 July 2002

(11 days)

Yes

Summary

Account

(A/59/44, § 156–240)

Mexico

4 years, 7 months

(Oct 1998–May 2003)

23 Aug to 12 Sept

(20 days)

Yes

Full report

(CAT/C/75)

Sri Lanka

4 years, 3 months

(July 1998–Oct 2002)

19 Aug to 1 Sept

(13 days)

No

Summary

Account

(A/57/44, § 123–195)

Peru

6 years, 6 month

(Apr 1995–Oct 2001)

13 Aug to 13 Sept 1998

(1 month)

Yes

Summary

Account

(A/56/44, § 144–193)

Egypt

4 years, 6 months

(Nov 1991–May 1996)

Not consented

Yes

Summary

Account

(A/51/44, § 180–222)

Turkey

3 years, 7 months

(Apr 1990 –Nov 1993)

6–18 June 1992

(12 days)

Yes

Summary

Account

(A/48/44/Add.1)

38  An inquiry procedure can be divided into four main phases involving: the evaluation of sources of information; the decision to undertake the inquiry; conducting the inquiry, and; finally, the adoption and publication of the findings of the inquiry. Strictly speaking, the Committee seems to consider that the procedure starts with the examination of the information brought before it and ends with the transmission of the findings to the State party.58 In practice, however, after the transmission of the report to the State, there are still important steps to be considered, including the publication of the summary account or the full report on the inquiry, as well as follow-up activities. As shown in Table 1, measured from the date in which the Committee received the relevant information to the publication of its findings, the inquiry procedures conducted thus far lasted between three and six years. The longest inquiries (Peru, Serbia and Montenegro, Nepal) took over six years to complete.59 Several encompassed one, sometimes two changes in Government.60

39  In the following, this article will illustrate the key aspects of the procedure and provide an analysis of the inquiries so far concluded by the Committee.

3.1  Meaning of ‘systematic practise of torture’

40  The fundamental question underlying the inquiry procedure is whether torture is systematically practised in a State party. Such a question is usually considered twice by the Committee. The first assessment is done at the very beginning of the procedure, during the preliminary consideration conducted by the Committee in order to decide whether the information provided to it is reliable and contains well-founded indications that torture is being systematically practised. The second assessment is done in the final stage of the procedure, ie after the inquiry has been carried out by a delegation of the Committee.

41  As the procedure is confidential and the only information available are those published after the inquiry has been concluded, there are very few details on what standards the Committee applies when assessing whether or not torture might be practised systematically. However, more information is available on the assessment conducted in the final stage of the procedure which is made public in the summary account.

42  The Committee defined for the first time the concept of ‘systematic practice of torture’ in its first summary account of the results of the proceedings concerning the inquiry on Turkey in November 1993. The definition provides as follows:

(p. 553)

The Committee considers that torture is practised systematically when it is apparent that the torture cases reported have not occurred fortuitously in a particular place or at a particular time, but are seen to be habitual, widespread and deliberate in at least a considerable part of the territory of the country in question. Torture may in fact be of a systematic character without resulting from the direct intention of a Government. It may be the consequence of factors which the Government has difficulty in controlling, and its existence may indicate a discrepancy between policy as determined by the central Government and its implementation by the local administration. Inadequate legislation which in practice allows room for the use of torture may also add to the systematic nature of this practice.61

43  This definition was then confirmed in all subsequent inquiry procedures, ie all summary accounts of later inquiries62 and full reports on Mexico,63 Brazil,64 and Nepal.65

44  When assessing whether torture is practised in a habitual manner, the Committee has so far considered several elements, including the number of torture allegations and whether such allegations come from different, and reliable66 and consistent sources.67 Information is considered reliable if it is coming from sources who have proved to be so in connection with other activities of the Committee.68 Allegations are considered consistent when they described in the same way the circumstances in which the cases arose, the purpose of the torture, the methods employed, and the places where torture is practised and by whom. As for the required number of torture allegations, in its first inquiry the Committee clarified that:

… even though only a small number of torture cases can be proved with absolute certainty, the copious testimony gathered is so consistent in its description of torture techniques and the places and circumstances in which torture is perpetrated that the existence of systematic torture in Turkey cannot be denied.69

45  In fact, considering that torture is usually practised clandestinely and is routinely denied by Governments, it is difficult to prove beyond reasonable doubt, even after two or three weeks of intensive fact-finding in the country concerned, that the practise of it is ‘habitual, widespread and deliberate in at least a considerable part of the territory of the country in question’. Therefore, when there are different, reliable, and consistent sources showing that torture is systematically practised, the Committee does in practice consider that the requirement of ‘habitual torture’ is met, despite the fact that the number of instances of torture that can be proved with absolute certainty is not very high. Furthermore, a State party may be found to practise torture systematically despite the fact that there has been a decrease in the number of torture allegations.70 This is not always the case. In the inquiry procedure on Serbia and Montenegro, in fact, the Committee concluded that torture had been systematically practised in Serbia only prior to October (p. 554) 2000, but no longer so after that date due to the fact that, under the new political regime, the incidents of torture appeared to have dropped considerably and torture was, thus, no longer systematic. Nonetheless, it was clear that cases of torture continued to occur, particularly in police stations, and that reforms of the police and the judiciary had yet to demonstrate their full effectiveness in preventing and punishing the practice.71

46  Secondly, according to the Committee’s definition in order to be systematic torture must be ‘widespread’. In this regard, it was clarified that it is not necessary that such practice occurs in all parts of a country.72 On the other hand, torture must be widespread and habitual in at least a considerable part of the territory of the country in question. In the inquiry on Serbia and Montenegro, systematic torture was only found explicitly in the Republic of Serbia, not in Montenegro. Thus, the summary account does not contain any clear finding on the situation in Montenegro before or after October 2000.73

47  Thirdly, systematic torture must also be ‘deliberate at least in a considerate part of the country’ though it does not have to result from the ‘direct intention of the Government’. The comparison of the ten inquiries concluded so far has showed that an explicit Government policy instructing the intelligence or law enforcement bodies to use torture for the purpose of extracting information or confessions is not required by the Committee for arriving at the conclusion that torture is practiced systematically in a given country. However, the Committee has not been always very consistent in this regard. For example, in the inquiry on Sri Lanka, despite having in the initial assessment ‘reaffirmed that the information available to it provided well-founded indications that torture was being systematically practised in Sri Lanka’,74 the Committee finally concluded that torture was not systematic. In so doing, it took into particular consideration the fact that the torture incidents had taken place ‘mainly in connection with the internal conflict’ but that further developments, particularly the ceasefire agreement on 23 February 2002 monitored by an international monitoring mission, effectively removed the conditions which had been identified by the Committee as a major cause for the prevalence of torture and other forms of ill-treatment connected.75 If one takes into account that, according to the Committee’s working definition, torture may in fact be of a systematic character without resulting from the direct intention of the Government and it may be the consequence of factors which the Government has difficulty in controlling, this conclusion indicates a comparatively high standard for the systematic character of torture from the point of Governments. This particular aspect of the Committee’s definition was criticized by Brazil. More specifically, Brazil argued that the Committee had attached a special meaning to the expression of ‘systematic torture’ without it reflecting either the intention of the States parties or the common meaning normally attached to the term ‘systematic’ in international human rights, humanitarian. or criminal law.76 According to Brazil, to be regarded as systematic a violation would have to be carried out in ‘a deliberate and planned manner’ and ‘be committed according to a certain pattern, under an international plan or policy, albeit not explicitly admitted’. On the basis of this interpretation, Brazil disagreed with the Committee’s opinion that torture (p. 555) was systematically practised, as it denied the existence of any deliberate plan or policy for the practice of torture in the country.77

48  A further element explicitly recalled in the above mentioned definition of systematic torture is the existence of ‘inadequate legislation which in practice allows room for the use of torture [which] may also add to the systematic nature of this practice’. In this regard, it shall be noted that in its last two inquiry procedures (Nepal and Lebanon) when assessing the notion of systematic torture the Committee has explicitly recalled its General Comment No 2 and the obligation of States to take effective legislative, administrative, judicial, and any other appropriate measures to prevent torture according to Article 2 CAT. In the inquiry on Nepal, for example, the Committee found that the failure to prosecute those responsible for acts of torture and to end the practices of falsification of registers, incommunicado detention, and disrespect for fundamental legal safeguards had contributed to the continuing habitual, widespread, and deliberate practise of torture in Nepal.78 Similar conclusions were reached in the inquiry on Lebanon.79 In the case of Nepal, the Committee further concluded that such inadequacies were to be regarded as ‘deliberate’80 and that the ‘actions and omissions … amount[ed] to more than a casual failure to act’81 but demonstrated that ‘the authorities not only fail to refute well-founded allegations but appear to acquiesce in the policy that shields and further encourages these actions, in contravention to the requirements of the Convention.’82 In fact, if it is apparent from information provided by reliable sources that torture is widespread, and if at least some of these cases are corroborated during the fact-finding mission by testimonies from victims, witnesses, and/or Government officials, first-hand impressions of particularly harsh prison conditions, an analysis of inadequate legislation, and other means of taking evidence, such as forensic examinations, the Committee may find a systematic practise of torture by Government acquiescence or lack of adequate control.

49  The Committee also stressed that the existence of specific legislation aimed at combating terrorism and other particularly serious offences, which undermined the rights of detained persons and made them particularly vulnerable to torture, proved that ‘torture has been occurring with the authorities’ acquiescence’. In addition, it held that the deplorable conditions of detention amounted to CIDT (no electricity, no drinking water, extremely cold temperatures at a height of more than 4,500 metres above sea level without heating, etc.) and to torture (long period of detention of arrested persons and sensorial deprivation and almost total prohibition of communication) and underlined its systematic practise.83

50  Finally, although not explicitly mentioned in the definition, other factors may influence the Committee’s assessment. For example, the refusal to allow a fact-finding mission to its territory, as in the case of Egypt and Nepal, does not shield the respective Government from any finding of systematic torture, and may even nurture the suspicion that the Government wishes to hide such practice. On the other hand, full cooperation by the Government, as in the case of Sri Lanka, may lead the Committee to conclude that the practice of torture, although widespread, is not systematic. Similarly, a change of Government and the acceptance of the new Government that torture was (p. 556) systematic under the previous regime might also be a factor leading to such conclusion. In the case of Serbia and Montenegro, the Committee even made a clear distinction between systematic practice of torture in Serbia under the Milosevic regime and individual cases occurring under the Government of President Kostunica, which were no longer considered as systematic.

51  As illustrated in Table 1, out of the ten inquiry procedures conducted thus far, the Committee found ‘systematic torture’ in all cases but one, namely Sri Lanka.

3.2  Article 20(1): Evaluation of Sources of Information

52  The first phase, described in Article 20(1), is triggered by the receipt of information alleging the systematic practise of torture in a State party. The Secretary-General is then tasked to forward to the Committee any ‘information which is, or appears to be, submitted for the Committee’s consideration under article 20, paragraph 1, of the Convention’ (Rule 75). Although this Rule empowers the Secretariat to exercise some screening ultimately the decision on whether information is reliable and well-founded remains with the Committee.84

53  The inquiry procedure being optional, only information concerning States parties which are bound by the inquiry procedure can be received, ie States parties that have not made a reservation under Article 28 or that have subsequently withdrawn their initial reservation. Moreover, contrary to Article 22, there is no requirement to exhaust domestic remedies before an inquiry procedure can be started.85

54  At this point, the Committee conducts a preliminary consideration of the information received. The preliminary consideration normally concerns two aspects, namely whether the information is ‘reliable’ and whether it contains ‘well founded indications that torture, as defined in article 1 of the Convention, is being systematically practiced in the territory of the State party concerned’ (Rule 81). Though Article 20 foresees the designation of members only once the decision to undertake the inquiry is already warranted, in certain cases, the Committee has designated one or more members already at the first stages of the procedure, either in order to analyse the information provided to it86 or, as will be seen below, in order to verify the responses provided by the States parties.

55  In so far as the information is ‘reliable’ and ‘well-founded’, the Committee may initiate an inquiry ex officio, ie on its own initiative, without it being based on a specific complaint of a victim, an NGO, or a State party. In practice, however, most inquiries concluded thus far have been based on information received from NGOs, such as AI, HRW, and national organizations.87 The inquiry procedure, therefore, resembles to some extent an actio popularis by NGOs. Nevertheless, the procedure is clearly of a reactive nature, and it can be undertaken only after the Committee has received information about systematic practices of torture in the territory of a State party and for the purpose of investigating these allegations; and not in order to prevent torture, as do other monitoring bodies.

(p. 557) 3.2.1  Meaning of ‘reliable information’

56  According to Rule 81(1), when necessary, the Committee ‘may’ ascertain the reliability of the information and its source(s) through the Secretary-General. It may also obtain additional relevant information to substantiate the facts of the situation. Rule 81’s language suggests that these two particular steps are discretionary.

57  The drafting history of the RoP shows that Rule 81 was adopted only after significant debate over the quality of information needed to trigger an Article 20 procedure.88 In the end, the Committee concluded that no additional proof or evidence of any kind should be required, because the objective of an Article 20 inquiry was to gather such proof or evidence. At this stage, it decided that the Committee should simply determine in a two-step process whether the information is reliable and the indications well-founded. No definition of reliability was included because the assessment should be made on a case-by-case basis.

58  Neither the Convention nor the Committee’s RoP, therefore, place any restrictions on the type of source the information should come from. In principle, the Committee could initiate an inquiry based on media reports, as feared by States such as the USSR and India during the drafting period.89 In practice, allegations of systematic torture have mostly come from NGOs. Six of the ten Committee’s concluded inquiries were initiated in response to information received from NGOs with headquarters in New York, London, or Geneva,90 whereas three began as a response to NGOs based in the State party being investigated.91 Most recently, the Committee has shown a willingness to be proactive in initiating an Article 20 procedure by not waiting to receive a specific request before undertaking an assessment.92 For example, in its inquiry procedure against Nepal, the Committee seems to have first taken into account its concluding observations, where it had inter alia expressed ‘serious concerns about allegations of widespread use of torture’.93

59  In order to assess the reliability of the ‘sources’, the CAT Committee has taken into account whether they have proved to be reliable in connection with other activities of the Committee.94 To this end, it may also decide to examine ‘additional information’. To date, the Committee has considered information obtained from the State party, other international and local NGOs, information from UN officials and bodies, such as for example the Special Rapporteur on Torture (SRT), the Office of the High Commissioner of Human Rights (OHCHR), the Committee on the Rights of the Child (CRC), the Working Group on Enforced or Involuntary Disappearances (WGEID), as well as from the ACmHRP.95 In some cases, the CAT Committee has even consulted the State party (p. 558) directly regarding its observations on the source’s reliability.