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Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Or Punishment, Part VII Final Provisions, Art.31 Relation to Regional Systems of Preventive Visits to Places of Detention

Stephanie Krisper

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

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 16 August 2022

Subject(s):
Torture — Detention — Treaties, interpretation

(p. 1001) Article 31  Relation to Regional Systems of Preventive Visits to Places of Detention

The provisions of the present Protocol shall not affect the obligations of States Parties under any regional convention instituting a system of visits to places of detention. The Subcommittee on Prevention and the bodies established under such regional conventions are encouraged to consult and cooperate with a view to avoiding duplication and promoting effectively the objectives of the present Protocol.

1.  Introduction

This provision reflects the principle of cooperation, which is at the heart of the OP’s preventive approach.1 It aims to ensure not only that the work of other monitoring bodies in the field of torture prevention shall not be undermined by the Subcommittee on Prevention,2 but also that the experiences gained so far by regional mechanisms shall be shared with the Subcommittee in order to promote the objectives of the OP. Unnecessary duplication, however, shall be avoided in order not to waste valuable and limited resources.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Revised Costa Rica Draft (15 January 1991)3

(p. 1002)

Article 9

  1. 1.  If, on the basis of a regional convention, a system of visits to places of detention similar to the one of the present Protocol is in force for a State Party, the Subcommittee shall only in exceptional cases, when required by important circumstances, send its own mission to such a State Party. It may, however, consult with the organs established under such regional conventions with a view to coordinating activities including the possibility of having one of its members participate in missions carried out under the regional conventions as an observer. Such an observer shall report to the Subcommittee. This report shall be strictly confidential and shall not be made public.

  2. 2.  The present Protocol does not affect the provisions of the Geneva Conventions of 12 August 1949 for the protection of victims of war and their Additional Protocols of 8 June 1977 by which the Protecting Powers and the International Committee of the Red Cross visit places of detention, or the right of any State Party to authorize the International Committee to visit places of detention in situations not covered by international humanitarian law.

Mexican Draft (13 February 2001)4

Article 19

  1. 1.  The provisions of the present Protocol shall not affect the obligations of States parties under any regional convention based on a system of visits to places of detention. The Sub-Committee and the bodies established on the basis of such regional mechanisms shall consult and cooperate in order to promote effectively the objectives of the present Protocol and avoid any duplication of work.

US Draft (16 January 2002)5

Article 10

  1. 1.  The provisions of the present Protocol shall not affect the obligations of States Parties under any regional convention based on a system of visits to places of detention. The Sub-Committee on Prevention and the bodies established on the basis of such regional mechanisms shall consult and cooperate in order to promote effectively the objectives of the present Protocol and avoid any duplication of work.

2.2  Analysis of Working Group Discussions

Although the revised Costa Rica Draft of 1991 did not contain a clause similar to that which was finally adopted as Article 31 OP, the issue of the relationship between the preventive mechanism envisaged under the Protocol and other regional mechanisms, such as the CPT, was the subject of intense negotiations within the Working Group. The discussions took place in the framework of Article 9 of the Costa Rica Draft, which contained a provision covering cases where, based on a regional convention, a system of visits to places of detention similar to that of the Protocol was in force for a State party. The draft envisaged (p. 1003) that in such cases the Subcommittee should only in exceptional cases send its own mission to the State party. However, the Article provided for consultations between the Subcommittee and the regional mechanism as well as for the possibility of dispatching a member of the Subcommittee as an observer to a mission carried out by the regional mechanism.

In the first session of the Working Group, the Chairperson-Rapporteur invited the States’ representatives to give due consideration to this issue.6 Most delegations considered a balanced relationship between the Subcommittee and regional bodies vital for the credibility of the new mechanism. Hence, the introduction of appropriate measures of coordination in order to avoid competition and duplication and to enhance complementarity was required.7 The Working Group also took note of the reservations expressed by the Chairperson of the CPT about the proposed dispatch of a member of the Subcommittee as an observer to a mission of the regional mechanism.8 The Working Group agreed that any arrangement should respect regional mechanisms that were working effectively, provide a certain degree of integration between the regional and the international systems without prejudicing their essential characteristics and requirements, and avoid any subordination of either system to the other. A possible solution was seen in the principle of complementarity of function of these bodies and in the principle of reciprocal cooperation between them. A number of delegations noted that the existence of a regional mechanism for certain States should not serve as an exemption from international scrutiny by the Subcommittee under the Protocol.9

The relationship between regional bodies and the Subcommittee, which was declared a priority issue in the first session of the Working Group, was discussed in greater detail during the second and third sessions. It was stressed that duplication between these bodies should be avoided and complementarity enhanced. Since the scope of the Protocol was universal, no region should be excluded even if it was covered by a regional system. Some delegates found Article 9 of the Costa Rica draft sufficient while others argued that the relationship between different systems had to be made clearer in order to avoid overlapping. Again, the principle of reciprocal cooperation was seen as a possible solution. A proposal was made that States that had ratified both a regional convention as well as the Protocol should agree that their respective visit reports drawn up by the regional body be automatically forwarded to the Subcommittee on a confidential basis.10

After a number of amendments the Working Group adopted Article 9 as the outcome of the beginning of the first reading on 21 October 1994.11 Paragraph 2, which encouraged the Subcommittee to cooperate with different organs and institutions, including regional mechanisms, was followed by paragraph 3, which ascertained (p. 1004) the universal scope of the Protocol by placing the decision to visit States parties that are also parties to regional conventions on the Subcommittee. However, cooperation between the Subcommittee and the regional mechanism was envisaged and States were encouraged to submit to the Subcommittee visit reports drawn up by the regional body.12

A number of editorial changes were made to paragraph 3 of Article 9 in the sixth session of the Working Group in 1997 and it was adopted as new paragraph 3 of Article 11 as outcome of the second reading.13 However, when Mexico, with the support of GRULAC, introduced a new draft,14 its Article 18(2) only contained a general clause on cooperation with international and regional bodies, leaving out detailed arrangements governing this cooperation. In addition to earlier drafts, a provision was inserted which clarified that the provisions of the Protocol shall not affect the obligations of States parties under any regional convention instituting a system of visits to places of detention. Again, the Subcommittee and regional mechanisms were encouraged to consult and cooperate with a view to avoiding duplication and promoting effectively the objectives of the Protocol. Also the proposal by the United States15 followed this undisputed approach, which was taken up by the Chairperson-Rapporteur in the tenth session of the Working Group16 and finally adopted as Article 31 OP.

3.  Issues of Interpretation

3.1  Relevant Regional Systems of Visits to Places of Detention

10  The relevant regional bodies are primarily the CPT under the European Convention against Torture,17 as well as the Special Rapporteur on Prisons and Other Conditions of Detention under the African Charter on Human and Peoples’ Rights18 and the Special Rapporteur on the Rights of Persons Deprived of Freedom under the American Declaration of the Rights and Duties of Man.19

11  Much value can be identified in the system that has been initiated by the Protocol. First of all, the Protocol introduced a preventive system with a two-pillar approach, combining efforts on the international as well as on the national level. Second, the Subcommittee on Prevention has a global mandate to visit places of detention worldwide and in any country or territory under a State party’s jurisdiction. Consequently, it has gained much experience in the international field and has contributed enormously to the overall and common goal of an effective prevention of torture and other forms of ill-treatment.

(p. 1005) 3.2  Avoiding Duplication

12  As the CPT was already active by the time the OPCAT entered into force, this could mean that the SPT steps back from conducting missions to countries that are visited by the CPT. Hence, while the phrase ‘avoiding duplication’ clearly does not oblige the SPT to do so, this was indeed the practice of the SPT in the first years—with the exception of a visit to Sweden in its first year of operation (2007) which was determined on the basis of drawing lots. Only after visiting the Ukraine in 2011 did the SPT start to undertake visits to Council of Europe countries more frequently each year.

13  Although the drafting process of the Protocol has already shown that the Subcommittee on Prevention—in its mandate—is based primarily on the experiences of the CPT, there are some major differences between these two bodies as far as their functioning is concerned. Whilst the CPT’s mandate is geared to a particular region, the mandate of the Subcommittee is potentially global. Due to this global reach, it is challenging for the Subcommittee to ensure that every region worldwide is sufficiently represented in its annual programme of missions. This is compounded by the fact that the international body consists of only twenty experts and that the length and duration of its missions and visits is different from those conducted by the CPT. Furthermore, the CPT has the mandate to conduct so-called ad hoc visits in addition to its periodic visits, whereas the Subcommittee can propose to carry out a follow-up visit to the State party concerned, but does not have the mandate to act on an ad hoc basis.20

14  Duplication can be understood as an overlap of visits. This has only been an issue in the case of ad hoc visits by the CPT. However, also avoiding to ‘getting in each other’s way’ should be an aim that can be reached by avoiding visits taking place in too close a proximity to each other.21 Such planning should avoid disturbing the possibly lengthy process of dialogue arising out of a visit.22

15  As to consultation and cooperation foreseen by Article 31 OP between the Subcommittee and the regional treaty bodies, it is of the utmost importance that all treaty monitoring bodies aim at establishing a system of good cooperation and dialogue, including the sharing of information, a framework for mutual consultations, and the possibility of joint projects, as well as an adjustment of criteria for joint visits to States parties.23 Between the CPT and the SPT, cooperation exists by informal exchange between (p. 1006) the secretariats of the two committees as well as between their members. Information sharing is impeded by the fact that the deliberations of each Committee are confidential and due to the timings of decision-making the relevant information may just not yet be there to share.24 The coordination between the SPT and the CPT has been apparent in some SPT reports.25

Stephanie Krisper

Footnotes:

2  Although under this Article reference is made mainly to the European regional system of torture prevention being a role model for the system installed by the OP, the considerations thereto might also be applied to other regional monitoring mechanisms.

3  Letter dated 15 January 1991 from the Permanent Representative of Costa Rica to the United Nations at Geneva addressed to the Under-Secretary-General for Human Rights [1991] UN Doc E/CN.4/1991/66.

4  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its ninth session [2001] UN Doc E/CN.4/2001/67, Annex I.

5  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its tenth session [2002] UN Doc E/CN.4/2002/78, Annex II E.

6  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1992] UN Doc E/CN.4/1993/28, para 20.

7  ibid, para 95.

8  Letter from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment [1992] UN Doc E/CN.4/1992/WG.11/WP.1/Add.6.

9  E/CN.4/1993/28 (n 6) paras 96ff.

10  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1993] UN Doc E/CN.4/1994/25, paras 69ff.

11  Report of the Working Group on the Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its third session [1994] UN Doc E/CN.4/1995/38, paras 31ff.

12  ibid, Annex, Art 9.

13  Report of the Working Group on a Draft Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its sixth session [1997] UN Doc E/CN.4/1998/42, paras 32ff and Annex, Art 11(3).

14  E/CN.4/2001/67 (n 4) Annex I. See above para 7.

15  E/CN.4/2002/78 (n 5) Annex II E. See above para 8.

16  ibid, Annex I (proposal by the Chairperson-Rapporteur).

17  Rachel Murray and others, The Optional Protocol to the UN Convention against Torture (Oxford University Press 2011) 146–48.

18  ibid 149–51.

19  ibid 151–52.

20  See above Art 13 OP.

21  Christine Bicknell and Malcolm Evans, ‘Monitoring Prisons: The Increasingly Complex Relationship Between International and Domestic Frameworks’ in T Daems (ed), Europe in Prisons (Palgrave McMillan, Cham 2017) 18.

22  ibid 30: ‘On average, a CPT visit report is transmitted about eight or nine months after the visit takes place, and a response is requested within six months. Thus the state is likely to be most engaged substantively about a year after the actual visit has taken place. Although the SPT tends to transmit its reports four or five months after a visit, the period of response is similar’ (31).

23  In its first mission report, the SPT notes that it has studied the recommendations made by the CPT carefully and, as not all these recommendations were reflected in the legislation considered by the SPT, the SPT issues recommendations similar to those made by the CPT. In another mission report, the SPT reminds the State party of and reinforces the CPT’s recommendations. Furthermore, when recommending that the State party request the publication of the SPT’s report in accordance with Article 16(2) OP, it also recommended that the State party requests the publication of the CPT’s report: see SPT, ‘Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Sweden’ (2008) UN Doc CAT/OP/SWE/1, para 121; SPT, ‘Report on the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Ukraine’ (2016) UN Doc CAT/OP/UKR/1, para 96.

24  Bicknell and Evans (n 21) 31, para 23: ‘Thus whilst the decision making of the SPT takes place in June of the preceding year, that of the CPT now takes places earlier and is made public in time for it to be taken into consideration. Obviously, the CPT will not be aware of the SPT’s as yet undecided plans. This reverses the situation before 2014, when the decision-making of the SPT was made in ignorance of the CPT’s plans, though it must be said that there is a degree of predictability to the CPT’s cycle of regular visits. The CPT’s ad hoc visits are of course entirely unpredictable and cannot be factored into any planning process. It seems unlikely that the CPT takes much account of the SPT’s visiting programme when considering whether to undertake an ad hoc visit, but given their differing natures and backgrounds, that is reasonable.’

25  See eg SPT, ‘Fifth Annual Report’ (2012) CAT/C/48/3, para 36; SPT, ‘Sixth Annual Report’ (2013) CAT/C/50/2, para 47; SPT, ‘Ninth Annual Report’ (2016) CAT/C/57/4, para 35.