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.