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14 February 2014 Mauro Palma Vice- President European Council for Penological Co-operation Former President European Committee for the prevention of torture and Inhuman or degrading treatment or punishment Council of Europe The Committee for the Prevention of Torture (CPT)
Article 3 of the European Convention on Human Rights (1950) provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment“ No exceptional circumstances of any kind may be invoked to diminish the absolute nature of this ban and allow practices disrespectful of the dignity of a person deprived of his/her liberty by a public authority.
Article 3 of the Convention inspired the drafting, in 1987, of a new Convention focused on the prevention of ill treatments in any place of deprivation of liberty: The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (47 States) Council of Europe
1976Jean-Jacques Gautier’s idea: independent and internationally binding on the spot monitoring of deprivation of liberty as a crucial means of preventing torture 1981Failure of initial attempts to launch the idea at UN level Mobilisation of the Parliamentary Assembly of the Council of Europe Intergovernmental work on a draft European Convention against torture 1987 Adoption of the text of the ECPT 1989 Entry into force 1990 (May) First CPT visit (Austria) 2002 (December) UN Optional Protocol against torture 2014 (January) Near to 330 visits carried out by the CPT
The Convention provides a non-judicial preventive machinery to protect detainees It is based on a system of visits by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) Council of Europe
Mandate "The Committee shall, by means of visits, examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment." Council of Europe
Main features / powers of the CPT a treaty-based body aimed at prevention of torture a proactive non-judicial mechanism (alongside the reactive judicial mechanism of the European Court of Human Rights) the right to visit, at any time, any place where persons are deprived of their liberty the right to interview in private detained persons access to information “necessary for the CPT to carry out its task”
The CPT’s field of operations 47 European States (only 1 exception) ECPT applicable in time of peace and of war Article 17(3): Priority for ICRC in case of “armed conflicts” covered by the Geneva Conventions 1949
System of visits periodic visits (announced every year) ad hoc visits (requested by the circumstances) Regular, unannounced visits to places of deprivation of liberty, followed by confidential reports with recommendations to the authorities If a country fails to co-operate or refuses to improve the situation, the CPT may decide to make a public statement
Co-operation with the national authority since the aim is to protect persons deprived of their liberty rather than to condemn States for abuses Confidentiality about its findings and its recommendations (the Committee meets in camera and its reports are strictly confidential) Nevertheless, if a country fails to co-operate or refuses to improve the situation, the CPT may decide to make a public statement Two guiding principles
“any place of deprivation of liberty” Police stations Places of questionings Pre-trial detention facilities Prisons Military detention facilities Holding centres for “immigration detainees” Juvenile detention centres Psychiatric establishments Social welfare establishments
Focus of the assessment Intentional ill-treatment: - of detainees by staff - inter-detainees violence Reaction to allegations of ill-treatment Conditions of detention: - material conditions - regime / activities Health care services Contact with the outside world Use of means of restraint Discipline and isolation Complaints and inspection procedures Staffing issues
The visit process: Before Selection of States to be visited periodic visits: decided by the CPT; countries announced the year before ad hoc visits: decided by the CPT or Bureau, based on information received (wide range of sources) Composition of visiting delegation decided by CPT or Bureau Detailed preparation Secretariat in consultation with visiting delegation Notification of visit periodic visits: 2 weeks before ad hoc visits: variable
The visit process: During + After The visit begins with contacts with local NGOs and the national authorities closes with end-of-visit discussions with the national authorities (Ministerial level) preliminary remarks - “immediate observations”
The visit process: After Visit report findings, recommendations Government response On-going dialogue
Report on the visit – Standard setting body Recommendations: a) to amend national legislation b) to change or amend bye-laws and/or administrative acts c) to fully implement existing legal provisions; d) to effectively investigate events or allegations of ill-treatment d1) to deliver a clear message to all law enforcement officials or other categories of staff that ill-treatment will be not tolerated and will be severely sanctioned; e) to improve the material conditions of accommodation or the regime activities available; f) to provide specific and effective training of law enforcement officials, so as to improve their professionalism and human rights awareness.
The European Court of Human Rights Sentences indicative of the complementarity between CPT and ECtHR: Conditions Kalashnikov v/ Russian Federation (2002) Sulejmanovič v/ Italy (2009) Torreggiani (2013) “pilota” Special regimes Lorsé & others v/ The Netherlands (2003) Migrants Irsi & others v/ Italy (2012) Investigations Finucane v/ The United Kingdom (1995)
Istanbul Protocol (1999) Investigations on allegations of torture Adequacy The investigation must be capable of leading to the identification and punishment of those responsible. Thoroughness The investigation should be comprehensive in scope and address all of the relevant background circumstances. Impartiality and independence Persons responsible for carrying out the investigation must be impartial and independent from those implicated in the events. Promptness The investigation must be commenced with sufficient promptness in order to obtain the best possible amount and quality of evidence available. Public scrutiny There should be a sufficient element of public scrutiny of the investigation or its results to secure accountability, to maintain public confidence in the authorities’ adherence to the rule of law and to prevent any appearance of collusion in or tolerance of unlawful acts.
The EU involvement The EPR and their ongoing implementation The possibility of adopting a binding instrument concerning the basic rules to be complied with The Stockholm roadmap: the transfer of detainees a Code of Prison Staff Ethics the Green Paper
European Prison Rules Nine basic principles 1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3 Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. 4. Prison conditions that infringe prisoners’ human rights are not justified by lack of resources. 5. Life in prison shall approximate as closely as possible the positive aspects of life in the community. 6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty. 7. Co-operation with outside social services and as far as possible the involvement of civil society in prison life shall be encouraged. 8. Prison staff carry out an important public service and their recruitment, training and conditions of work shall enable them to maintain high standards in their care of prisoners. 9. All prisons shall be subject to regular government inspection and independent monitoring.
New actors CPT – Regional monitoring OPCAT - UN Subcommittee on Prevention of Torture, the SPT National preventive mechanisms, the NPMs. Synergies to be built
Future operative challenges Developing the CPT’s ability to react rapidly to (and foresee) events Keeping focused on the core mandate of prevention of torture and ill-treatment Concrete assistance to States for the implementation of CPT recommendations (especially those with significant financial implications). Mobilising support from other institutions.
Future “political” challenges Extending the CPT’s field of operations to the whole of Europe: –to areas in which the central authorities are not at present in effective control –to Belarus (and the Central Asian States participating in the OSCE?) Developing close cooperation with the UN Subcommittee on Prevention of Torture: –Avoiding duplication in the context of Europe –Coordination of efforts towards the development of national preventive mechanisms
“Thematical” challenges in recent years 1.The fallout of the fight against terrorism: the extension of maximum periods of custody, limitations on the exercise of fundamental safeguards, seeking diplomatic assurances secret detentions the so-called “enhanced interrogation techniques” the tendency towards less transparent procedures
“Thematic” challenges in recent years 2.The credibility of the prevention of ill-treatment and torture is undermined each time allegations of ill-treatment are not properly investigated and those responsible are not held to account for their actions (impunity). Article 3 ECHR implies “negative” (don’t torture) and “positive” (fight against torture) obligations: positive obligations include prevention and effective investigation of any possible information about ill- treatment. On occasion of the twenty-one years of its activity the CPT called on all the States party to the Convention to take effective measures to end the practice of impunity for law enforcement officials suspected of perpetrating acts of ill-treatment.
Challenges in recent years 3.Prison conditions, in particular prison overcrowding, an issue to which the CPT drew attention as long ago as Prison overcrowding means cramped and unhygienic accommodation, a constant lack of privacy, reduced out-of-cell activities, and overburdened health-care services, as well as increased tension and hence more violence between prisoners and between prisoners and staff. Obviously it can not be tackled (only) by building new prisons
Challenges in recent years 4.The treatment of persons detained under aliens’ legislation; this has been a focus of many of the Committee’s visits during the last twentyyears. The CPT is fully conscious of the great difficulties confronting certain European countries as a result of the significant influx of irregular migrants; and those countries are certainly entitled to expect other members of the international community to make a concerted effort to help them tackle this problem. That said, nothing can excuse the deplorable conditions that the CPT finds on occasion in facilities accommodating persons detained under aliens legislation.