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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.24 Annual Report

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

(p. 642) Article 24  Annual Report

The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the GA of the United Nations.

1.  Introduction

1  The annual reports of human rights treaty monitoring bodies provide the public with a comprehensive description of the various activities of the respective committees as well as of the controversial issues discussed among their members. Since these expert bodies are, legally speaking, not organs of the United Nations (UN), the annual reports also serve the purpose of strengthening the link to the relevant political bodies of the UN which have the task and power to ensure that the findings of these expert bodies are in fact implemented by States parties. Consequently, some human rights treaties explicitly provide that the respective treaty bodies shall in their annual reports make suggestions and general recommendations to the political UN bodies based on their monitoring experiences.1 However, neither Article 45 CCPR nor Article 24 CAT contains a similar provision.

2  The respective treaty provisions differ as to the addressee of annual reports. Article 9(2) CERD provides that the Committee shall report through the Secretary-General to the General Assembly (GA). Articles 45 CCPR, 21 CEDAW, and 44(5) CRC require the respective reports to be submitted through ECOSOC to the GA, but the CEDAW report shall also be transmitted to the Commission on the Status of Women. Article 74(7) of the Migrant Workers Convention requests the Committee to present its report directly to the GA, but the Secretary-General shall also transmit this report to the States parties, ECOSOC, the Commission on Human Rights (since 2006 Human Rights Council), the Director-General of the ILO and other relevant organizations. The CED Committee shall, based on Article 36, report to the States parties and to the GA. According to Article 39 Convention on the Rights of Persons with Disabilities (CRDP), the treaty monitoring body of this Convention shall submit a report to the GA and to the ECOSOC only every two years. Finally, the Subcommittee on Prevention, pursuant to Article 16(3) OP, shall present a public annual report on its activities to the Committee against Torture.2

(p. 643) 3  The CAT Committee is, together with the CED Committee,3 the only treaty monitoring body which, pursuant to Article 24 CAT, shall report directly to the States parties and the GA. As explained by Herman Burgers and Hans Danelius, ‘the authors of the present Convention considered that the responsibility of the Committee against Torture towards the States Parties which have elected it should come first and foremost’.4 In practice, it does not make much difference to which organ the reports are officially addressed. They are public documents,5 and any political body of the UN with a human rights function can take them up, discuss any relevant issue and adopt recommendations to the respective treaty bodies as well as to the States parties with the aim of improving their implementation of the relevant treaty obligations. After the establishment of the Human Rights Council in June 2006, the universal periodic review has become an important forum to urge governments to comply with the respective decisions and recommendations of human rights treaty bodies.6

4  The annual reports of the CAT Committee are published as Supplements to the Official Records of the GA and are at the same time transmitted to all States parties to the Convention. In addition to organizational and procedural matters, the annual reports contain comprehensive chapters on the activities of the Committee under the State reporting, inquiry and individual complaints procedures.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

5  International Association of Penal Law Draft (15 January 1978)7

Article XIII

  1. 5.  The Special Committee on the Prevention of Torture shall meet not less than once a year for a period of not more than five days, either before the opening or after the closing of sessions of the Human Rights Committee and shall issue an annual report of its findings.

6  Original Swedish Draft (18 January 1978)8

Article 21

The Human Rights Committee shall include in its annual report to the GA a summary of its activities under Articles 16, 17, 18, 19 and 20 of the present Convention.9

7  Draft Optional Protocol by Costa Rica (6 March 1980)10

(p. 644)

Article 11

  1. 4.  The Committee shall submit to the annual Assembly a general report which shall be made public.

8  Swedish Proposal for Implementation Provisions (22 December 1981)11

Article 34

The Committee shall submit to the GA of the United Nations, through the Economic and Social Council, an annual report on its activities.

9  Draft Implementation Provisions, Submitted by the Chairman-Rapporteur (1 February 1982)12

Article 17

  1. 4.  The group established in accordance with paragraphs 1 and 2 shall forward an annual report on its performance of the functions described in Articles 18 and 19 to the States parties to the Convention. It shall forward a copy of this report to the Commission on Human Rights.

10  New Article Submitted to the Working Group by the Chairman-Rapporteur in 198313

The Committee shall submit an annual report on its activities under this Convention to the States parties and to the GA of the United Nations.

11  Report of the Working Group (25 March 1983)14

Article 24

The Committee shall submit an annual report on its activities under this Convention to the States parties and to the GA of the United Nations.

2.2  Analysis of Working Group Discussions

12  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. Consequently, no reference was made to the question of annual reporting during this period. However, the written comments of several States, made in 1978, regarding the implementation provisions of the original Swedish draft convention,15 shaped the subsequent discussions of the Working Group.16

13  The first time the Working Group discussed the implementation provisions specifically was in 1981. The general debate which took place during that session was largely based on the original Swedish draft.17 In 1982 the Working Group carried out a more thorough debate regarding the implementation provisions18 on the basis of a revised Swedish draft.19

(p. 645) 14  During the 1983 session, the question of annual reporting was discussed for the first time on the basis of Article 34 of the Swedish draft,20 which provided, in accordance with Article 45 CCPR, for the submission of an annual report by the Committee to the GA of the through the ECOSOC.

15  In view of completing this provision, it was generally observed that, given the responsibility of the supervisory body towards the States parties that had elected it,21 they should be the primary recipients of the annual reports. The Working Group therefore agreed that these reports should primarily be addressed to them in the first instance. Regarding the submission of reports to the GA, the discussion led the Working Group to conclude that it was unnecessary to have ECOSOC act as an intermediary.22 In connection with this last point, reference was made to CERD, which did not contain such a provision. Following these discussions, the Chairman-Rapporteur proposed a new version of the text, which read as follows: ‘The Committee shall submit an annual report on its activities under this Convention to the States parties and to the General Assembly of the United Nations.’23 This redrafted article met with no objections from the Working Group,24 yet was not formally adopted at this stage.

16  In 1983, the issue of annual reporting was also highlighted in the discussions relating to the State reporting procedure of draft Article 19, of which paragraph 4 offered the Committee the following possibility: ‘The Committee may, at its discretion, decide to include any comments or suggestions 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 … ’25

17  Regarding the inquiry procedure detailed in draft Article 20, and particularly the confidentiality requirement contained in paragraph 5, consensus was reached within the Working Group to keep the proceedings confidential as long as they were still in progress.26 The question of maintaining confidentiality once the inquiry procedure had been completed was brought up. On the initiative of the Australian delegation,27 some delegations proposed that confidentiality could be set aside once such proceedings had been finalized in respect of a particular case and that a summary of the results should be included in the annual report. The Working Group finally decided that the Committee should have the possibility of including a summary of the results in its annual report. This decision resulted in the adoption of a new paragraph 5 based on the draft text submitted by the Chairman-Rapporteur.28

18  During the 1984 Working Group session Article 24 did not give rise to any objections and was thus formally adopted.29

(p. 646) 3.  Issues of Interpretation

3.1  Content of the Annual Report

19  Following the example of other treaty monitoring bodies,30 the Committee reports annually on its activities on the basis of Article 24 and Rule 64. Published as Supplement No 44 to the Official Records of the GA31 the Committee has, to this date, submitted thirty annual reports, ranging from forty-six pages in 1988 to 282 pages in 2006, 492 pages in 2014, and around twenty pages since 2015.32 Article 24 and Rule 64 do not contain any specific requirements as to what the annual reports should cover and only quite generally mention the Committee’s activities. Rule 64 does, however, state that the annual reports should include ‘a reference to the activities of the Subcommittee on Prevention, as they appear in the public annual report submitted by the Subcommittee to the Committee under article 16, paragraph 3, of the Optional Protocol’.33 Specific indications as to what the Committee may publish in its annual reports can be found in the Convention provisions referring to State reporting (Article 19(4))34 and the inquiry procedures (Article 20(5))35 but not, however, in respect of the individual complaints procedure. To this extent, more guidance on the individual complaints procedure is given by Rule 121(2), which establishes that the annual report shall include the full text of its final decisions on the merits as well as—at the discretion of the Committee—a summary of the complaints examined, and the explanations and statements of the States parties concerned. As of 2011, the RoP also state that general comments shall be included in the Committee’s annual report (Rule 74(2)). In light of these provisions and rules, the Committee, in the past, pursued the practice of publishing in its annual reports the full text of all decisions on the admissibility and merits of individual complaints,36 the summary accounts of all results of inquiry procedures37 as well as all conclusions and recommendations on each State report.38 However, taking into account the GA resolution 68/268 of 2014 establishing a 10,700 word-limit for each document produced by the human rights treaty bodies and the rule not to include documents published separately and referenced in the annual reports, regrettably, the Committee’s annual reports no longer include these elements as of 2015.39

(p. 647) 20  As regards their structure, in addition to organizational and similar matters, the annual reports contain an overview of the actions taken by the Committee at its latest session and a section relating to the submission of reports by States parties under Article 19 CAT, including a subsection on action taken by the Committee to ensure the submission of reports. The sections which then follow are dedicated to the consideration of State party reports under Article 19; follow-up to concluding observations on Sates parties’ reports; activities of the Committee under Article 20; and, finally, communications under Article 22.

21  The annexes to the annual report have been significantly reduced since GA Resolution 68/268 was passed in 2014. Until 2014, the annexes generally contained three updated lists: one including all the States that have signed, ratified, or acceded to the Convention;40 one comprising all the States parties that have declared that they do not recognize the competence of the Committee as provided for by Article 20 CAT;41 and another one comprising all those States parties that have made declarations under Articles 21 and 22 CAT.42 In the past, the annexes to the annual report also contained information relating to the membership of the Committee;43 the status of submission of reports by States parties.44 Furthermore, the Committee followed the practice of the Human Rights Committee of publishing the full text of its admissibility decisions and final views in an annex to its annual report.45 In its 1998, 2008, and 2013 annual reports, the Committee reproduced the texts of its general comments.46 Since 2015, however, the only annex included in the annual report contains information relating to the Committee’s membership, officers, and mandates.47

3.2  Publication of the Annual Report

22  The Committee, which holds three sessions per year, adopts its annual report at the end of its spring session in order to ensure the consideration of the report at the GA’s regular session, which takes place in November.48 According to Rule 35(1), annual (p. 648) reports, as all other official documents of the Committee, are public and available for free consultation in UN offices, national departments of foreign affairs, and the larger libraries,49 as well as on the website of the OHCHR.50

23  The GA has, in its resolutions based on the reports of the Third Committee, regularly welcomed the work of the Committee and underlined the quality of its reports. Moreover, in 1995, the GA expressed its satisfaction in relation to the modified presentation of the annual reports and for the improvements made in the Committee’s working methods.51 In 2006, the GA welcomed the inclusion by the Committee of information on the follow-up by States to its recommendations.52 In 2012, the GA welcomed the efforts made by the Committee to improve the efficiency of its working methods, including with a view to further harmonizing the working methods of the treaty bodies, and urged the Committee to continue its activities in this regard.53

24  Although the annual reports are in fact prepared by the Secretariat, the Rapporteur of the Committee has the formal responsibility for the accuracy of the reports. The Rapporteur, who is an officer of the Committee, is elected from among Committee members for a term of two years in accordance with Article 18(1) and Rules 16 and 17.54 The following Committee members have served as Rapporteur: Dimitar Nikolov Mikhailov from Bulgaria (1988–1989), Peter Thomas Burns from Canada (1990–1993), Bent Sørensen from Denmark (1994–1995 and 1998–1999), Julia Iliopoulos-Strangas from Greece (1996–1997), Sayed Kassan El Masry from Egypt (2000–2005), Felice Gaer from the United States (2006–2007), Myrna Kleopas from Cyprus (2008–2010), Nora Sveaass from Norway (2010–2012 and 2012–2014), Satyabhooshun Gupt Domah from Mauritius (2014–2015), Essadia Belmir from Morocco (January–April 2016), and Sébastien Touzé from France (April 2016–present).55

Giuliana Monina

Footnotes:

1  See eg Art 9(2) CERD; Art 21(1) CEDAW; Art 74(7) CMW; Art 39 CRPD.

2  See below Art 16 OP.

3  See Art 36 (1) CED.

4  J Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988) 168.

5  See CAT, ‘Rules of Procedure, as lastly amended by the Committee at its Fiftieth Sessions (06 May 2013–31 May 2013)’ (2014) UN Doc CAT/C/3/Rev.6, r 35.

6  See GA Res 60/251 of 15 March 2006.

7  Draft Convention for the Prevention and Suppression of Torture Submitted by the International Association of Penal Law (1978) UN Doc E/CN.4/NGO/213.

8  Draft Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment Submitted by Sweden (1978) UN Doc E/CN.4/1285.

9  These articles refer respectively to the State reporting, the inquiry, the inter-state complaints, the conciliation, and the individual complaints procedures.

10  Draft Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by Costa Rica (1980) UN Doc E/CN.4/1409.

11  Draft Articles Regarding the Implementation of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Submitted by Sweden (1981) UN Doc E/CN.4/1493.

12  Draft Implementation Provisions Submitted by the Chairman-Rapporteur of the Working Group (1982) UN Doc E/CN.4/1982/WG.2/WP.6; see also Annex III of the 1982 Working Group Report (E/CN.4/1982/L.40).

13  New Draft Article Submitted to the Working Group by the Chairman-Rapporteur (1983) UN Doc E/CN.4/1983/WG.2/WP.8.

14  Report of the Working Group of the Commission on Human Rights (1983) UN Doc E/CN.4/1983/63.

15  E/CN.4/1285 (n 8).

16  Summary by the Secretary-General in Accordance with Commission Resolution 18 (XXXIV) of the Commission on Human Rights (1978) UN Doc E/CN.4/1314, paras 99–103. See also Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Martinus Nijhoff 1999) 242.

17  E/CN.4/1285 (n 8).

18  E/CN.4/1982/L.40 (n 20).

19  E/CN.4/1493 (n 11).

20  E/CN.4/1983/63 (n 14) para 29.

21  Burgers and Danelius (n 4) 168.

22  E/CN.4/1983/63 (n 14) para 66.

23  E/CN.4/1983/WG.2/WP.8 (n 13).

24  E/CN.4/1983/63 (n 14) para 67.

25  E/CN.4/1983/63 (n 14) para 54; and Consolidated Proposals on Draft Article 19 Submitted by the Chairman-Rapporteur (1983) UN Doc E/CN.4/1983/WG.2/WP.7.

26  E/CN.4/1983/63 (n 14) para 61.

27  Burgers and Danelius (n 4) 88.

28  Draft Article 20 Submitted by the Chairman-Rapporteur (1983) UN Doc E/CN.4/1983/WG.2/WP.4; see also above Art 20, §§ 11–33, §§ 79–82

29  Report of the Working Group of the Commission on Human Rights (1984) UN Doc E/CN.4/1984/72, para 57.

30  See eg Art 45 CCPR; Art 9(2) CERD; Art 21 CEDAW.

31  With the exception of the 1988, 1989, and 1991 annual reports (A/43/46, A/44/46, and A/46/46), they bear the symbol A/45 . . . 71/44, the middle number referring to the respective session of the General Assembly.

32  Since 2015, the content of annual reports has been reduced due to a 10,700-word limit for treaty body documentation established by the GA Res 68/268 of 9 April 2014.

33  Rule 64 was introduced for the first time by the Committee at its Forty-fifth session in 2010 (CAT/C/3/Rev.5); and then confirmed in the amendment adopted at its Fiftieth session in 2013 (CAT/C/3/Rev.6).

34  See also Rule 71(3) for the publication of comments by the Committee or observations by the State Party and Rule 67(2) for the publication of information on non-submission of reports.

35  See also Rule 90 (3) on the publication of summary accounts of the inquiry proceedings.

36  The full text of the decisions on the admissibility and merits of individual complaints was included in the annex to annual reports from 1990 until 2014, with the exception of the annex to the 1993 annual report.

37  The summary accounts of all results of inquiry procedures were included in annual reports from 1994 until 2014.

38  The conclusions and recommendations of the Committee on each State report were included in the annual reports from 1994 until 2014.

39  GA Res 68/268 of 9 April 2014, paras 4 and 15, where it is stated that documents published separately should not be included in the annual report ‘without prejudice to the formulation of the annual report of each human rights treaty body as laid out in the respective treaty’ (para 4).

40  The list of States that have signed, ratified, or acceded the Convention was included in the annex of annual reports from 1988 until 2014.

41  The list of States parties that have opted out of the inquiry procedure established under Articles 20 and 28 of the Convention was included in the annex of annual reports from 1998 until 2014.

42  This list of States parties that have made the declarations provided for in Articles 21 and 22 of the Convention was included in the annex of annual reports from 1998 until 2014.

43  Information relating to the membership of the Committee has been included in the annexes to annual reports since the first annual report in 1988.

44  Information relating to the status of submission of reports by States parties was included in the annexes to annual reports from 1989 until 2014, with the exception of the annex to the 2003–2005 annual reports. From 2006 until 2012, this annex listed overdue reports only.

45  The full text of all decisions on the admissibility and merits of individual complaints was included in the annex to annual reports from 1990 until 2014, with the exception of the annex to the 1993 annual report.

46  CAT, ‘Report of the Committee Against Torture’ (1998) UN Doc A/53/44, Annex IX, 52; CAT, ‘Report of the Committee Against Torture, Thirty-ninth Session (5–23 November 2007), Fortieth Session (28 April–16 May 2008)’ (2008) UN Doc A/63/44, Annex VI, 176; CAT, ‘Report of the Committee Against Torture Forty-ninth Session (29 October–23 November 2012) Fiftieth Session (6–31 May 2013)’ (2013) UN Doc A/68/44, Annex X, 254.

47  CAT, ‘Report of the Committee Against Torture Fifty-third Session (3–28 November 2014) Fifty-fourth Session (20 April–15 May 2015)’ (2015) UN Doc A/70/44, Annex, 24; CAT, ‘Report of the Committee Against Torture Fifty-fifth Session (27 July–14 August 2015) Fifty-sixth Session (9 November–9 December 2015) Fifty-seventh Session (18 April–13 May 2016)’ (2016) UN Doc A/71/44, Annex, 18; CAT, ‘Report of the Committee Against Torture Fifty-eighth Session (25 July–12 August 2016) Fifty-ninth Session (7 November–7 December 2016) Sixtieth Session (18 April–12 May 2017)’ (2017) UN Doc A/72/44, Annex, 24.

48  A/70/44 (n 48) para 85.

49  Chris Ingelse, United Nations Committee Against Torture: An Assessment (Martinus Nijhoff 2001) 108.

50  See the OHCHR, ‘The Committee against Torture’ <https://www.ohchr.org/en/hrbodies/cat/pages/catindex.aspx> accessed 2 November 2017.

51  GA Res 49/177 of 23 December 1994, para 18.

52  GA Res 61/153 of 19 December 2006, para 19.

53  GA Res 67/232 of 24 December 2012, para 1.

54  See above Art 18.

55  CAT, ‘Report of the Committee Against Torture’ (1988) UN Doc A/43/46, para 10; CAT, ‘Report of the Committee Against Torture’ (1990) UN Doc A/45/44, para 8; CAT, ‘Report of the Committee Against Torture’ (1992) UN Doc A/47/44, para 8; CAT, ‘Report of the Committee Against Torture’ (1994) UN Doc A/49/44, para 8; CAT, ‘Report of the Committee Against Torture’ (1996) UN Doc A/51/44, para 8; A/53/44 (n 47) para 11; CAT, ‘Report of the Committee Against Torture’ (2000) UN Doc A/55/44, para 10; CAT, ‘Report of the Committee Against Torture Twenty-seventh Session (12–23 November 2001) Twenty-eighth Session (29 April–17 May 2002)’ (2002) UN Doc A/57/44, para 8; CAT, ‘Report of the Committee against Torture Thirty-first Session (10–21 November 2003) Thirty-second Session (3–21 May 2004)’ (2004) UN Doc A/59/44, para 7; CAT, ‘Report of the Committee against Torture Thirty-fifth Session (14–25 November 2005) Thirty-sixth Session (1–19 May 2006)’ (2006) UN Doc A/61/44, para 7; A/63/44 (n 47) para 7; CAT, ‘Report of the Committee Against Torture Forty-third Session (2–20 November 2009) Forty-fourth Session (26 April–14 May 2010)’ (2010) UN Doc A/65/44, para 7; CAT, ‘Report of the Committee Against Torture Forty-seventh Session (31 October–25 November 2011) Forty-eighth Session (7 May–1 June 2012)’ (2012) UN Doc A/67/44, para 7; CAT, ‘Report of the Committee Against Torture Fifty-first Session (28 October–22 November 2013) Fifty-second Session (28 April–23 May 2014)’ (2014) UN Doc A/69/44, para 9; A/71/44 (n 48) Annex, 19; A/72/44 (n 48) Annex, 24.