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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part III Mandate of the Subcommittee on Prevention, Art.16 Reports of the Subcommittee

Kerstin Buchinger

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: 02 December 2023

Subject(s):
Torture — Treaties, interpretation

(p. 867) Article 16  Reports of the Subcommittee

  1. 1.  The Subcommittee on Prevention shall communicate its recommendations and observations confidentially to the State Party and, if relevant, to the national preventive mechanism.

  2. 2.  The Subcommittee on Prevention shall publish its report, together with any comments of the State Party concerned, whenever requested to do so by that State Party. If the State Party makes part of the report public, the Subcommittee on Prevention may publish the report in whole or in part. However, no personal data shall be published without the express consent of the person concerned.

  3. 3.  The Subcommittee on Prevention shall present a public annual report on its activities to the Committee against Torture.

  4. 4.  If the State Party refuses to cooperate with the Subcommittee on Prevention according to articles 12 and 14, or to take steps to improve the situation in the light of the Subcommittee’s recommendations, the Committee against Torture may, at the request of the Subcommittee on Prevention, decide, by a majority of its members, after the State Party has had an opportunity to make its views known, to make a public statement on the matter or to publish the report of the Subcommittee.

1.  Introduction

1  After every country mission, the SPT shall draw up a report, including its recommendations and observations to the State party concerned. Despite the fact that the principle of confidentiality laid down in Article 2(3) OP constitutes one of the main principles of the Protocol,1 the drafters of Article 16 OP attempted to strike a fair balance between the principle of confidentiality and the need for transparency and publicity of its activities, taking into account the respective provisions of the ECPT.2 (p. 868) A country-specific mission report may be published in any of the following four circumstances:

  • •  if the State party explicitly requests publication;

  • •  if the State party makes part of the report public;

  • •  if the State party refuses to cooperate with the Subcommittee;

  • •  if the State party refuses to take steps to improve the situation in the light of the SPT’s recommendations.

2  In the first two cases mentioned above, the decision to publish the report is made by the SPT itself. This is done either in accordance with a request of the State party or as a reaction to a partial publication of the report which may present a distorted picture. The SPT shall decide whether it wishes to publish only another part of the report in order to present a more accurate picture of the facts, observations, and recommendations, or whether it prefers to publish the entire report.

3  In the second set of cases, the decision to publish the report constitutes a sanction against the violation of the principle of cooperation by the State party concerned. Such decision is taken by the CAT Committee, at the request of the SPT and after the State party has had an opportunity to make its views known. Instead of publishing the report as a whole, the CAT Committee may also decide to make a public statement only.

4  In addition to country-specific mission reports, the SPT shall also present a public annual report on its activities to the Committee against Torture. No confidential country-specific information shall be included in such annual reports, unless it has been made public before in accordance with the different rules contained in Article 16 OP.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

5  Original Costa Rica Draft (6 March 1980)3

Article 11

  1. 1.  The Committee, after considering a report of its delegates, shall inform the State Party concerned in confidence of its findings and, if necessary, make recommendations. It may initiate consultations with the State Party with a view to furthering the protection of persons deprived of their liberty.

  2. 2.  With the consent of the State Party concerned the Committee may publish its findings and recommendations in whole or in part.

  3. 3.  In the event of a disagreement between the State Party concerned and the Committee as to the Committee’s findings or as to the implementation of its recommendations, the Committee may at its discretion publish its findings or recommendations or both in whole or in part.

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

(p. 869) 6  Revised Costa Rica Draft (15 January 1991)4

Article 14

  1. 1.  After each mission, the Subcommittee shall draw up a report on the facts found during the mission, taking account of any observations which may have been submitted by the State Party concerned. It shall transmit to the latter its report containing any recommendations it considers necessary and may consult with the State Party with a view to suggesting, if necessary, improvements in the protection of persons deprived of their liberty.

  2. 2.  If the State Party fails to cooperate or refuses to improve the situation in the light of the Subcommittee’s recommendations, the Committee against Torture may at the request of the Subcommittee decide by a majority of its members, after the State Party has had an opportunity to make known its views, to make a public statement on the matter or to publish the Subcommittee’s report.

  3. 3.  The Subcommittee shall publish its report, together with any comments of the State Party concerned, whenever requested to do so by that State Party. If the State Party makes part of the report public, the Subcommittee may publish the report in whole or in part. However, no personal data shall be published without the express consent of the person concerned.

  4. 4.  In all other respects, the information gathered by the Subcommittee and its delegation in relation to a mission, its report and its consultation with the State Party concerned shall remain confidential. Members of the Committee against Torture, the Subcommittee, its delegations and their staff are required to maintain confidentiality during and after their terms of office.

Article 15

  1. 1.  The Committee against Torture shall examine the reports and recommendations which may be submitted to it by the Subcommittee. It shall keep them confidential as long as no public statement in accordance with Article 14 paragraph 2 has been made or as long as they have not become public in accordance with Article 14 paragraph 3 of this Protocol.

  2. 2.  Subject to the rules of confidentiality, the Subcommittee shall every year submit a general annual report on its activities to the Committee against Torture, which shall include information on the activities under this Protocol in its annual report to the General Assembly of the United Nations in accordance with Article 24 of the Convention.

7  Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)5

Article 14

  1. 1.  After each mission, the Sub-Committee shall draw up a report which shall be submitted to the State Party concerned. The Sub-Committee shall finalize its report after fair consideration is given to comments submitted, within a reasonable time, by the State Party concerned. If the State Party so wishes, its comments shall form an annex to the report. The Sub-Committee shall transmit to the State Party its report (p. 870) containing any [feasible] recommendations it considers necessary to improve the protection of persons deprived of their liberty. To this effect, the Sub-Committee and the State Party may consult on the implementation of the recommendations, including on ways and means in which the State Party can be assisted.

  2. 2.  Except as otherwise specified in this Article, the information gathered by the Sub-Committee and its delegation in relation to a mission, its report and its consultation [and cooperation] with the State Party concerned shall remain confidential. Members of [the Committee against Torture, ] the Sub-Committee and other persons assisting the Sub-Committee are required during and after their terms of office, to maintain the confidentiality of the facts or information of which they have become aware during the discharge of their functions.

  3. 3.  At the request of the State Party concerned, the Sub-Committee shall publish its report. By agreement between the Sub-Committee and the State Party, the report may be published or made public in part. If the State Party decides to make part of the report public, the Sub-Committee may, after consultation with the State Party concerned [and with the consent of the latter], make a public statement or publish the report in whole or in part in order to ensure a balanced presentation of the contents of the report.

  4. 4.  [If the State Party fails to cooperate or refuses to improve the situation in the light of the Sub-Committee’s recommendations, the Committee against Torture may at the request of the Sub-Committee decide by a majority of its members, after the State Party has had an opportunity to make known its views, to make a public statement on the matter or to publish the Sub-Committee’s report.]

  5. 5.  No personal data shall be published without the express consent of the person concerned.

Article 15

  1. 1.  The Committee against Torture shall examine the reports and recommendations which may be submitted to it by the Sub-Committee. It shall keep them confidential as long as no public statement in accordance with Article 14 paragraph 4 has been made or as long as they have not become public in accordance with Article 14 paragraph 3 of this Protocol.

  2. 2.  The Sub-Committee shall submit every year a general confidential report on its activities to the Committee against Torture, including a list of States Parties visited, the composition of the visiting delegations and the places visited. Furthermore, the Sub-Committee shall submit every year a public report, including the countries visited, and may include any general recommendations on ways of improving the protection of persons deprived of their liberty. The Committee against Torture shall include non-confidential information on the activities under this Protocol in its annual report to the General Assembly of the United Nations in accordance with Article 24 of the Convention.

8  Mexican Draft (13 February 2001)6

Article 17

  1. 1.  The Sub-Committee shall inform the Committee against Torture and the State Party concerned of its recommendations and observations.

  2. 2.  The Sub-Committee shall submit an annual report of its activities to the Committee against Torture.

(p. 871) 9  EU Draft (22 February 2001)7

Article 14

  1. 1.  After each mission or visit, the Sub-Committee shall draw up a report on the mission or visit and any recommendations it considers necessary, which shall be submitted to the State Party concerned. The Sub-Committee shall finalize its report after fair consideration is given to comments submitted, within a reasonable time, by the State Party concerned. If the State Party so wishes, its comments shall form an annex to the report.

  2. 2.  The Sub-Committee shall transmit to the State Party its report containing any recommendations it considers necessary to improve the protection of persons deprived of their liberty. To this effect, the Sub-Committee and the State Party may consult on the implementation of the recommendations, including on ways and means in which the State Party can be assisted, as well as the submission of a request for technical cooperation as referred to in Article 9 paragraph 1 (e).

  3. 3.  The information gathered by the Sub-Committee in relation to a visit, its report and its consultations with the State Party concerned shall be confidential. Members of the Sub-Committee and other persons assisting the Sub-Committee are required, during their terms of office, to maintain the confidentiality of the facts or information of which they have become aware during the discharge of their functions.

  4. 4.  At the request of the State Party concerned, the Sub-Committee shall publish its report on a visit. By agreement between the Sub-Committee and the State Party, the report on a visit may be published or made public in part. If the State Party decides to make part of the report on a visit public, the Sub-Committee may make a public statement or publish the report in whole or in part in order to ensure a balanced presentation of the contents of the report.

  5. 5.  If a State Party fails to cooperate or refuses to improve the situation in the light of the Sub-Committee’s recommendations, the Committee against Torture may at the request of the Sub-Committee decide by a majority of its members, after the State Party has had an opportunity to make known its views, to make a public statement on the matter or to publish the report.

  6. 6.  No personal data shall be published without the express consent of the person concerned.

  7. 7.  Subject to the rule of confidentiality under paragraph 3, the Sub-Committee shall every year submit an annual report to the Committee against Torture on its activities, which shall be public.

10  US Draft (16 January 2002)8

Article 4

  1. 1.  The Subcommittee on Prevention shall submit an annual report of its activities to the Committee which shall be made available to States Parties. National mechanisms which may be established, maintained or provided for in accordance with the Protocol shall be provided with such reports.

  2. 2.  States Parties shall permit direct contact between such national mechanisms and the Subcommittee on Prevention.

(p. 872) 2.2  Analysis of Working Group Discussions

11  During the first session of the Working Group, held from 19 to 30 October 1992, the issues in question were discussed under Articles 14 and 15 of the revised Costa Rica Draft of 1991 and within the fourth basket of issues ‘Operation of the system’.

12  With regard to Articles 14 and 15, most delegations recognized that these articles were based upon the principle of confidentiality. There was general acceptance of the importance of that principle, and most speakers addressed specific aspects which needed clarification.9

13  One of the trends of the discussion related to the relationship between the SPT and the CAT Committee, and the need for strict confidentiality, which Articles 14 and 15 represented. One tendency was that confidentiality could be maintained by requiring the CAT Committee to respect the same conditions as the SPT. Another tendency was that the operation of a system of preventive visits depended on the body establishing relationships of confidence with States parties and national administrators. Cooperation would inevitably be difficult to establish and maintain if another body, with jurisdictional responsibilities, had the full details of specific findings by the SPT. Providing specific information to the CAT Committee in this regard could also affect the nature of its supervisory and monitoring duties in respect of particular States under the Convention. One delegation indicated that the operation of Articles 14 and 15 represented something of a compromise between the two tendencies.

14  Regarding the publication of information, several delegations found that the possibility of publication should not be used as a tool of compulsion but should be regarded as an element of the principle of cooperation. Some stated that the decision to make a public statement or to publish a report should be taken by a qualified majority of the members. It was emphasized by a number of delegations that both articles should be redrafted and a cooperative relationship between the two bodies should be developed.

15  At its fourth session from 30 October to 10 November 1995, Article 14 was reconsidered by the delegations of the Working Group.10 The importance of the principle of confidentiality was broadly recognized by the delegations, although opinions were divided over the extent of this principle and the exceptions thereto. It was agreed to change the order of the paragraphs in the original draft, so as first to state the general principle and then refer to the relevant exceptions to it. Furthermore, the principle of cooperation was recognized as an important principle. All delegations agreed that the SPT should consider the views of the State party in the preparation of its report. It was commonly felt that this Article should be based on recognition of good faith on the part of both the States parties and the SPT, without the Protocol losing its effectiveness to achieve its purpose. The representative of Australia stated that the CAT Committee rather than the SPT might be the appropriate body to make a public statement.

16  After various proposals had been discussed in the informal drafting group, its Chairperson introduced a revised draft of Article 14 which took into account the divergent views presented during the drafting group’s meetings. The new article contained (p. 873) five paragraphs instead of four, paragraphs 2 and 4 had changed places, and a separate paragraph 5 had been added about the publication of personal data. At its next plenary meeting, the Working Group then adopted the Article as submitted by the informal drafting group in first reading.

17  The provisions of Article 15 were examined by the Working Group in conjunction with Article 14, and many of the considerations raised were inseparable from that article. The Working Group decided to retain Article 15(1) as contained in the Costa Rica Draft. Submitting the results of the considerations by the informal drafting group of Article 15 as a whole, its Chairperson stated that the group had decided to recommend that the SPT should include specific facts in its annual confidential report to the CAT Committee. The group also proposed that the SPT should submit every year a public report to the CAT Committee, including the countries visited and any general recommendations. The CAT Committee should include non-confidential information on the activities of the SPT in its annual report to the General Assembly. The proposals submitted by the informal drafting group were then approved by the Working Group.

18  The Chairperson-Rapporteur invited the Working Group to discuss Article 14 as adopted at first reading at its seventh session from 28 September to 9 October 1998.11 In the course of the discussions, the observer for the Netherlands suggested a new text for this Article, replacing paragraphs 1 to 3 of Article 14. Moreover, he proposed replacing paragraphs 4 and 5 of Article 14 by new Articles 14 bis and ter. In the general discussion that followed this, it was emphasized that Article 14 was one of the key articles and no hasty decisions should be taken concerning it. Thus, the Chairperson-Rapporteur suggested that both the first reading of Article 14 and the proposal of the Netherlands should be used as a basis for future drafting.

19  During the eighth session of the Working Group from 4 to 15 October 1999, the nature and implementation of recommendations was addressed in the general discussion on Article 14. It was felt that the concept of technical assistance and cooperation should be duly highlighted in Article 14.12

20  On the question of public statements by the SPT or the publication of its reports, it was widely felt that such ‘going public’ would be an exceptional measure; the reports would normally be confidential unless the State concerned manifestly refused to cooperate.

21  Other issues raised in connection with Article 14 included the contents of the reports of the SPT, the feasibility of implementing its recommendations, the relationship between the SPT and the CAT Committee, the time frame for the implementation of the SPT’s recommendations, and the question of how the special fund to be established under Article 17 would be informed of the SPT’s recommendations.

(p. 874) 3.  Issues of Interpretation

3.1  Confidentiality of Mission Reports

22  Articles 14 and 15 of the revised Costa Rica Draft of 1991 were based almost literally on Articles 10 to 13 ECPT.13 But the OP differs from the ECPT in so far as the OP also has to take into account the relationship between two bodies, the SPT and the CAT Committee. Much of the discussion in the Working Group focused on this relationship.14 Delegates were afraid that the SPT would provide confidential information on country missions to the CAT Committee, which would use such information in the public State reporting or a quasi-judicial complaints or inquiry procedure. On the other hand, since the SPT is a subsidiary body of the CAT Committee, delegates proposed that the SPT should also submit its reports to the CAT Committee. Finally, the cooperative relationship between the SPT and the NPMs required that both bodies inform each other of their respective findings and recommendations. In general, the drafters of Article 16 OP achieved a fair balance between the principles of confidentiality and publicity, taking into account the legitimate interests of all stakeholders involved.

23  According to its guidelines in relation to missions to States parties under Article 11(a) OP, the members of a SPT delegation prepare a note summarizing their principle observations, which is then circulated among all members of the delegation in order to facilitate the drafting of the report. The draft report is prepared with the help of the secretariat. After having been approved by the head of the delegation, the draft report is circulated among the SPT members who had been participating in the mission and is revised accordingly. After the members of the delegation agreed upon a final draft, the draft report is sent to all SPT members for consideration and adoption.15

24  After every country mission, the SPT shall submit the adopted mission report confidentially to the State party concerned. Although Article 16(1) OP only speaks about ‘recommendations and observations’, there can be no doubt that the report as a whole shall be communicated to the respective Government, similar to Article 10(1) ECPT. At this time the mission report is not communicated to the CAT Committee but, ‘if relevant, to the national preventive mechanism’. The travaux préparatoires give no indication when the submission of the report to the NPM is ‘relevant’. The decision rests with the SPT, which generally makes it dependent on the level of cooperation with its domestic counterpart and on its duty of confidentiality.

25  If the State party concerned neither makes part of the report public nor requests the publication of the report, it shall remain confidential. This is in line with the practice under the ECPT.16 However, States parties to the ECPT have developed from the very beginning a culture of transparency by regularly requesting the CPT to publish the respective mission reports.17 As of 16 November 2017, a total of 419 missions have been concluded (p. 875) by the CPT, ie 247 periodic missions and 172 ad hoc missions. So far, 368 reports have been published at the request of the governments concerned. Only a small minority of States parties, above all Azerbaijan and the Russian Federation still tends to be restrictive in giving its authorization to publish reports.18 This practice of transparency has contributed significantly to a culture of gradually opening up closed institutions in the member States of the Council of Europe to public scrutiny, which by itself is a major factor in preventing torture and other forms of ill-treatment. It remains to be seen whether other States will follow in this respect the practice of European States. Similarly, the SPT noted already at quite an early stage that the ‘[p]ublication of an SPT visit report and the response from the authorities concerned is a sign of the commitment of the State party to the objectives of the OPCAT’ and ‘[e]nables civil society to consider the issues addressed in the report and to work with the authorities on implementation of the recommendations to improve the protection of people deprived of their liberty.’19

26  In 2010, the SPT summarized certain recommendations from the reports that had been published at that time (on Honduras, the Maldives, and Sweden) as it found that ‘they may be useful for other States in the area of prevention of torture’. These recommendations related to NPMs, the legal and institutional framework, and places of deprivation of liberty.20

27  Moreover, the SPT established a follow-up procedure to its mission reports, requesting States parties to provide ‘a response giving a full account of actions taken to implement the recommendations contained in the … report within a period of six months’.21 This procedure underwent an innovation, as in 2012 the SPT allowed the participation of the Mexican NPM at a private meeting with the Mexican authorities on the State party’s reply to the SPT’s mission report. The participation enabled the NPM to provide oral comments on the report which had been made available to it in advance according to Article 16(1) OP.22 In 2013, the SPT started to issue confidential written responses to all replies it receives,23 which were open for replies by States parties.24 Later on, the SPT decided to end this approach and to initiate a more focused post-mission dialogue process by inviting States parties to discuss and agree upon the most effective means of entering into dialogue with the SPT at the end of each mission.25

(p. 876) 28  By the end of 2016, the SPT had issued a total of fifty-one mission reports to States parties and NPMs; twenty-four reports had been made public following requests from their recipients.26 In its tenth Annual Report, the Subcommittee once again noted that ‘publication of its visit reports reflects the spirit of transparency on which preventive visiting is based’ and at the same time encouraged States parties and NPMs to authorize their publication.27

3.2  Publication as a Sanction

29  If the State party concerned makes part of the SPT’s report public, the latter may publish the report in whole or in part in accordance with Article 16 OP. This provision has no counterpart in the ECPT.28 It constitutes a useful measure to prevent a practice of unilaterally publishing only those parts of a report which are favourable to the Government concerned. The question arises whether the SPT is also authorized to publish its report if parts of it have been published by others, including the NPM which may receive the confidential report in accordance with Article 16(1) without being bound by the same duty of confidentiality. If the parts published by the NPM present a distorted picture in favour of the Government, the SPT, in our opinion, may decide to use its authority under Article 16(2) to publish the report in order to present a more accurate picture. If the NPM only publishes the most critical parts of the report, it is up to the Government concerned to request the entire report to be published. But the SPT has to be careful not to contribute to a situation in which parts of the report are deliberately leaked to the public by whomever in order to achieve its publication by a decision of the SPT or of the Government. In any case, the SPT, when preparing and publishing its reports, must comply with the prohibition on publishing personal data without express consent of the person concerned, which constitutes a generally accepted rule of professional fact-finding based on the human right of privacy and data protection of all persons interviewed.29

30  Similarly, the authority of the SPT under Article 16(4) to request the CAT Committee to publish the SPT’s report or to make a public statement on the situation in a given country shall be exercised with caution. The same holds true for the power of the CAT Committee to ‘go public’ as a sanction against a non-cooperative State party. These powers of both the CAT Committee and the SPT, which go beyond those of the CPT under Article 10(2) ECPT,30 should only be invoked against governments that clearly refuse any meaningful cooperation, obstruct the work of the SPT, and/or do nothing to implement the respective recommendations of the SPT in clear violation of their obligations under Articles 2(4), 12, 14, and/or 15 OP. In any case, before ‘going public’, the CAT Committee shall provide the State party with an opportunity to make its views known. The respective Government shall be granted sufficient time to submit its views31 (p. 877) which, according to the principles of objectivity and impartiality, should be included in the public statement of the CAT Committee. Until the end of 2017, publication had not been used as a sanction.

3.3  Annual Reports of the SPT

31  In accordance with Article 16(3) OP, the SPT shall present a public annual report on its activities to the CAT Committee. This provision, which corresponds to Article 12 ECPT, ensures a minimum of transparency about the activities of the SPT even if the country-specific mission reports are not made public. Article 16(3) contains no further guidelines as to which information shall be included in the SPT’s annual report. But Article 15(2) of the draft which constituted the outcome of the first reading in January 1996 specified that the annual report should include the countries visited and any general recommendations on ways of improving the protection of persons deprived of their liberty.32 In any case, the principle of confidentiality requires that no confidential country-specific information shall be included in the annual reports, unless the respective country mission reports have been made public or a respective public statement has been made by the CAT Committee in accordance with Article 16(4) OP. A summary of the SPT’s annual reports shall also be reflected in the annual reports of the CAT Committee, which are submitted to the States parties and the General Assembly in accordance with Article 24 CAT.33

32  In practice, the SPT uses its annual reports to reflect on its work and to put its thoughts on various issues of substance into public domain. After an introduction and overview of the respective year in review, including eg information on the developments concerning NPMs, the SPT regularly reported on issues arising from its work, the development of its working practices (for example, the establishment of certain