25 Years of the CPT and the Prevention of Ill-Treatment in Europe Prof. Dr. Anton van Kalmthout May 2015

WHY CPT HAS BEEN ESTABLISHED IN 1989? Explanatory notes to the ECPT: 1.“Torture and inhuman or degrading treatment or punishment are prohibited in national law and by several international instruments”. 2.“Experience shows, however, that there is a need for wider and more effective international measures, in particular to strengthen the protection of persons deprived of their liberty”.

2. a “Within the Council of Europe, the supervisory system established by the ECtHR has achieved important results”. “It is considered that this system, which is based on complaints from individuals or from States claiming that human rights violations have taken place, could usefully be supplemented by non-judicial machinery of a preventive character”.

2.b “The task of this machinary would be to 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”. 2.C “A special Committee (CPT) has to monitor the treatment of persons deprived of their liberty”.

Working Area of the CPT

Main Characteristics of the CPT -1- Aim: Preventing ill-treatment of persons deprived of their liberty in Europe: The CPT organises visits to places of detention, in order to assess how persons deprived of their liberty are treated. These places include prisons, juvenile detention centres, police stations, holding centres for immigration detainees, psychiatric hospitals, social care homes, military detention places, ICCI prisoners, removal flights, etc. CPT delegations have unlimited access to places of detention and all files and documents (even medical files), and the right to move inside such places without restriction. They interview persons deprived of their liberty in private, and communicate freely with anyone who can provide information.

Main Characteristics of the CPT -2- Monitoring is based on: Cooperation, confidentiality and immunity. Visits are carried out by multi-disciplinary teams (including medical/psychiatric experts). Each country has 1 member, chosen from among persons of high moral character, known for their competence in the field of human rights or having professional experience in the areas covered by this Convention. If necessary, the Committee may immediately communicate observations to the competent authorities of the Party concerned. Visits are in majority unannounced.

Main Characteristics of the CPT -3- After each visit, the CPT sends a detailed report to the State concerned. This report includes the CPT’s findings, and its recommendations, comments and requests for information. The CPT also requests a detailed response to the issues raised in its report. These reports and responses form part of the ongoing dialogue with the States concerned. If the Party fails to co-operate or refuses to improve the situation in the light of the Committee's recommendations, the Committee may decide by a majority of two-thirds of its members to make a public statement on the matter (10,2 procedure).

Focus of the CPT -1- Focus is on Torture or Inhuman or Degrading Treatment (=ill- treatment). This includes a.o.: 1. Violence by staff and inter-prisoner violence (including impunity), 2. Overcrowding, 3. Placement and regime of prisoners in general and vulnerable prisoners in particular, 4. Material Conditions (Size of cells/programs/hygiene/, state of repair), 5. Contact with the outside world, 6. Use of means of restraints,

Focus of the CPT Discipline and isolation, 8. Safeguards: a) Complaints and inspection procedures, b) Notification third party, lawyer, doctor, 9. Staffing issues (quality and quantity), 10. Health care (e.g. access to doctor, confidentiality, file keeping, reporting evidence of cases of ill-treatment to Public Prosecutor)).

What has been done in last 25 years? CPT carried out 362 visits, consisting of : 215 periodic/follow-up visits 147 ad hoc visits) From these 362 visits only 36 reports are not published yet by: Russian Federation (23 visits, 17not published), Azerbaijan (8 visits, 6 np.) Albania (11 visits, 2 np), Armenia (8 visits, 2 np), Moldova (13 visits, 2 np), (Bosnia/Herzegovina (6 visits, 1 np), Bulgaria (9 visits, 1 np), Czech Republic (7 visits, 1 np), Romania (10 visits, 1 np), Spain (14 visits, 1 np), Turkey (25 visits, 1 np) and Ukraine (11 visits, 1 np).

Some main findings after 25 year ILL-treatment takes place frequently and consists mostly of physical and psychological threats, kicks, punches, blows with truncheons, handcuffing etc). 2.Basic safeguards (access to lawyer, notification, doctor) often neglected, 3.Overcrowding is a fertile soil for all forms of ill-treatment, 4.Insufficient control by independent inspection and complaints procedures, 5.Material Conditions are often inhuman or degrading (Hygiene,cell size, lack of fresh air, natural light),

Some main findings -6- 6)Inter-prisoner and inter prisoner-staff violence takes often place, in particular sexual violence (especially juveniles by adults), 7)Lack of purposeful programmes and contacts with the outside world, 8)Inadequate Treatment of vulnerable groups, 9)Low quality and quantity of medical/psychological care, 10) Practices of solitary confinement.

What are the instruments of the CPT to prevent these and other forms of ill-treatment? -1- A. Acting as monitoring body: 1.Reporting to the authorities, including recommendations, 2.High-level talks with the authorities 3.Following-up the way recommendations are implemented, 4.As last resort: starting the procedure of art.10,2 B. Acting as fact-finding body, a.o for the European Court of Human rights

What are the instruments of the CPT to prevent these and other forms of ill-treatment? -2- C. Acting as standard setting body, see e.g Standards on: Police Custody Health care service Foreign nationals Juveniles/women Psychiatric hospitals Combating impunity Solitary Confinement

What are the instruments of the CPT to prevent these and other forms of ill-treatment? -3- D. Advising and working together with other Council of Europe/EU/UN or national bodies such as: Penological Council, PC-CP, Conference of Directors of Prison and Probation Services, Commissioner of Human Rights, Frontex, European Commission, UN bodies, especially SPT and UN Special Rapporteur on Human Rights, National Inspectorates, Ombudsmen and NPM’s.

Impact of CPT recommendations and standards 1.Acceptance of recommendations by the Member States 2.Jurisprudence of the European Court of Human rights 3.European Prison Rules/Rules on Juvenile Offenders 4.Influence on UN-bodies 5.Influence on national inspectorates/NPM’s

Examples of the impact of CPT on the European Court of Human Rights 1)Dougoz v. Greece (2001): detention circumstances, 2)Iorgov v. Bulgaria 2004): isolation, 3)Sulejmanovic v. Italy (2009): minimum cell size, 4)Orchowski v. Poland (2009) : overcrowding, 5)Salduz v. Turkey (2008): presence lawyer during interrogation, 6)Szuluk v. UK (2009): medical confidentiality, 7)Vinter e.a. v. UK (2013): life imprisonment, 8)Anayev v. Russia (2012): remand conditions, 9)v.d. Ven v. the Netherlands (2003 ): high security prisons 10)Rivas v. France (2004): proportionality of use of force

Balance after 25 year A.Many progress have been made, but in many countries it is like the Procession of Echternach: 3 steps forward, two steps backward. B.Main factors that hamper preventing ILL-treatment are: Problem of Impunity, CPT Standards and European Prison rules too often neglected as being regarded only as not-binding soft-law, Lack of follow-up by national inpections/NPM’s, Too litlle reference is made to Art. 3 ECHR in relevant procedures, Defensive reactions by authorities to CPT findings and recommendations,

New challenges for the next future High security prisons, Reaction by States to so-called radicalisation in prison, Overcrowding, Treatment of elderly detainees, Treatment of foreigners, especially irregular migrants detained under migration laws, Human rights of people in social care homes.