Preventing torture in Europe E-Book

Christine Bicknell

• Herausgeber: Conseil de l'Europe
• Kategorie: Geisteswissenschaft
• Sprache: Englisch
• Veröffentlichungsjahr: 2018

Seitenzahl: 743

Beschreibung

A comprehensive insight into the valuable work carried out by one of the Council of Europe’s highly influential mechanisms, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).
Since its inception in 1989, specialist members of the CPT (lawyers, prosecutors, prison experts, doctors, psychiatrists, etc.) have visited thousands of police stations, prisons, immigration detention centres, psychiatric hospitals and other places of detention all over Europe, to monitor the living conditions (hygiene, provision of food and drink, health care, etc.) of those being detained. Following these visits, the CPT issues reports suggesting improvements and laying down standards.The purpose of this book is twofold. In the first part, the authors explain the background and origins of the CPT, its membership and modus operandi, as well as how it interacts with other bodies, such as the UN’s Subcommittee on Prevention of Torture (SPT) and the national preventive mechanisms (NPMs). In the second part, the authors describe the CPT’s key findings and standards in the main situations of deprivation of liberty (police, prison, immigration detention, mental health and social care). In a detailed appendix, the authors provide summaries of the key CPT findings for the 47 states visited by the CPT.

Leseprobe

 

PREVENTING

TORTURE

INEUROPE

 

Christine Bicknell,

Malcolm Evans

and Rod Morgan

 

Council of EuropeFacebook.com/CouncilOfEuropePublications

Contents

 

Click here to see the whole table of contents, or go on the « Table of contents » option of your eReader.

Preface

In 2001 the Council of Europe published Combating torture in Europe (Morgan and Evans 2001), a guide written by two of us to inform state officials, nongovernmental organisation (NGO) workers, legal practitioners and others in Council of Europe member states about the standards developed by and applied to custodial situations by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). In 2016 we suggested to the Council of Europe that so much of the context within which the CPT works had changed since the turn of the millennium that there was arguably a need for a new text fulfilling the same purpose as Combating torture in Europe. The Council of Europe, including the CPT, agreed and the three of us were commissioned to undertake the task. We soon came to the conclusion that the developments were so significant that a new work, rather than a second edition of the older work, was called for. Preventing torture in Europe is the result.

A feature of this new work is an appendix containing a substantial set of profiles we have drawn up for all 47 Council of Europe member states. These profiles include some basic facts about their engagement with the CPT and what the CPT has found, necessarily selective given the hundreds of pages of CPT inspection reports that have been published over 27 years. We have decided not to include as appendices a list of CPT visits, the text of the European Convention on Human Rights (ETSNo. 5) ( “the Convention”), the two protocols and the explanatory report to the Convention, or the CPT’s Rules of Procedure. Those data and documents are today easily accessible from the Council of Europe’s very comprehensive and easily navigated website. Chapters 1 and 8 describe the increasingly complex human rights monitoring landscape within which the CPT operates and wherein its relationships with other bodies, both international and national, might develop in the future. Chapter 2 considers the operating practice of the CPT, while Chapter 3 features an exploration of the increasingly reflexive relationship between the CPT and the European Court of Human Rights, a topic scarcely developed at the turn of the millennium and today of major importance. Chapters 4 to 7 set out the standards of the CPT, accompanied by a series of case studies illustrating how the CPT has applied its standards in relation to police, penal, immigration and welfare custody respectively, to selected countries. We are grateful to several people knowledgeable about the CPT’s methodology and archived experience who read and commented on early drafts of particular chapters or the country profiles. Our thanks in this regard to Patrick Müller of the CPT’s Secretariat in Strasbourg, to Silvia Casale, formerly President of the CPT, and Mike Kellet, who frequently acts as an expert advisor to CPT inspection delegations and has in the past worked on attachment with the CPT. Suffice to say that any errors of fact or judgment that remain are entirely our own. We are also grateful to Emma Foley, Tomas Morochovic and Raawiyah Rifath, law students at the University of Exeter, who assisted with the painstaking task of tabulating the many judgments of the European Court of Human Rights we have cited.

At the time of writing, one of us, Malcolm Evans, is a member, and Chair, of the United Nations Subcommittee on Prevention of Torture (SPT). The opinions expressed in this book, however, are those of the authors collectively, writing in their academic capacities and not those of the SPT or of other organisations with which the authors are associated.

Finally, our thanks to Véronique Riff, our wonderfully patient editor at the Council of Europe, who continued to believe that we would finally deliver this text despite what must have appeared to be its illusory nature for many months.

Christine Bicknell, Department of Law, University of Exeter, UK.

Malcolm Evans, Department of Law, University of Bristol, UK

Rod Morgan, Professor Emeritus, University of Bristol, UK

Postscript

At several points in this work, the authors argue that the CPT and SPT should consider developing their co-operation further, taking into account Article 31 of the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Punishment or Treatment. In August 2018, the CPT and SPT issued a joint communiqué setting out details of a range of additional measures agreed on to strengthen and enhance their relationship. Although it has not been possible to reflect this in the text, the communiqué, with a brief comment, is included as an addendum to Chapter 8. Comments concerning the relationship between the CPT, SPT and national preventive mechanisms should now be read in light of this new development.

List of main abbreviations/acronyms

ACFC

European Advisory Committee on the Framework Convention for the Protection of National Minorities

APT

Association for the Prevention of Torture

CAT

UN Committee against Torture

CDDH

Steering Committee for Human Rights

CJEU

Court of Justice of the European Union

CPT

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

CPTA

Committee for the Prevention of Torture in Africa

ECHR

only when mentioning case law: European Court of Human Rights

ECRI

European Commission against Racism and Intolerance

ECT

Electroconvulsive therapy

EEAS

European External Action Service

EPRs

European Prison Rules

ETS

European Treaty Series (CETS – Council of Europe Treaty Series from No. 194)

FIACAT

International Federation of Action by Christians for the Abolition of Torture

FRONTEX

European Border and Coast Guard Agency

GREVIO

Group of Experts on Action against Violence against Women and Domestic Violence

GRULAC

Group of Latin American and Caribbean Countries

ICJ

International Commission of Jurists

ICRC

International Committee of the Red Cross

IRCT

International Rehabilitation Council for Torture Victims

KFOR

Kosovo Force (NATO)

MICT

Mechanism for International Criminal Tribunals

NGO

Non-governmental organisation

NPM

National Preventive Mechanism

OPCAT

Optional Protocol to UNCAT

SCAT

Swiss Committee Against Torture

SPT

UN Subcommittee on Prevention of Torture

SRT

UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Punishment or Treatment

UNCAT

UNConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

UNHCR

United Nations High Commissioner for Refugees

UNMIK

United Nations Interim Administration Mission in Kosovo

Chapter 1The European Convention for the Prevention of Torture in context

I. INTRODUCTION

The entry into force of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ETS No. 126) (European Convention for the Prevention of Torture)1 on 1 February 1989 marked the beginning of a new chapter in combating torture. This truly innovative international instrument focused for the first time on preventing torture and ill-treatment and, rather than set out new obligations or normative standards, it established an international body – the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) – that has a mandate that was then unique among international human rights bodies, permitting it to undertake unannounced visits to places of detention under the jurisdiction of states parties. The European Convention for the Prevention of Torture entered into force at a time when a number of other new international mechanisms were also “finding their feet”. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT)2 had been adopted by the UNGeneral Assembly in 1984 and entered into force on 26 June 1987, the very day on which the Committee of Ministers of the Council of Europe adopted the text of the European Convention for the Prevention of Torture. In 1985, the United Nations Commission on Human Rights established the position of UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Punishment or Treatment (SRT).3 When renewing that mandate in 1986, the UNCommission noted the proposal to establish the European Convention for the Prevention of Torture and encouraged the establishment of such visiting mechanisms in other regions.4 In his 1987 report the UN Special Rapporteur drew attention to this, and also expressed the view that such regional systems “would not necessarily stand in the way of the conclusion of a world-wide convention” (Kooijmans 1987: paras. 83-4). This was, to say the least, unsurprising, since the origins of the European Convention for the Prevention of Torture – which at the time of writing remains the only such regional treaty-based system – lie in attempts made to establish just such a world-wide mechanism. That world-wide system finally came into being in 2006 with the entry into force of the Optional Protocol to UNCAT (OPCAT).5 As a result, the CPT is no longer unique but exercises its visiting mandate alongside that of the UNSubcommittee on Prevention of Torture (SPT) that OPCAT establishes. OPCAT also requires states parties to establish national preventive mechanisms (NPMs), which are to operate in a similar fashion but at the national rather than international level. As a result, the CPT is today operating in a much more complex environment than when it was established almost 30 years ago.

There has also been a commensurate growth in the density and complexity of both the jurisprudence of the European Court of Human Rights and of “soft-law” standards relating to torture and torture prevention in the last 30 years. At the time the European Convention for the Prevention of Torture was adopted the European Court of Human Rights, remarkably, had not yet found that a state had committed an act of torture – the first time that happened was in the case of Aksoy v. Turkey in 1996.6 Today, it is almost a commonplace.7 During the life of the CPT the range of soft-law instruments setting out standards relating to those in detention has also grown exponentially – with key developments including the adoption of the revised European Prison Rules in 20068 and of the revised UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) in 2015.9 Other key documents adopted in recent years include the 2002 Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (the Robben Island Guidelines, which led to the establishment of the Committee for the Prevention of Torture in Africa – CPTA)10 and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules).11 There are many others.

Within the Council of Europe itself the CPT is now one of a number of bodies tasked with monitoring human rights obligations at a national level. While the nature of its treaty-based visiting mandate is still unique within the Council of Europe, the CPT now takes its place among bodies such as the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO); the European Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC); and the European Commission against Racism and Intolerance (ECRI), which also undertakes country visits as an element of its oversight activities.12 The establishment of the Council of Europe Commissioner for Human Rights in 1999 has also provided a complementary means of addressing both thematic and in-country human rights issues (Dörr 2017). While none of these developments undermines or cuts across the work of the CPT – in many ways they strengthen and reinforce it – they all add to the increasingly complex set of institutional interrelationships within which it has to function, including the inevitable competition for scarce and finite human and financial resources.

The CPT is also operating in a transformed European landscape from that which existed at the time of its creation. There has been growth in European Union (EU) competence in relation to criminal justice issues and the introduction of the European Arrest Warrant and the Prisoner Transfer Directive reflect increasing activism in the EU’s work relating to prisons and policing. The establishment of the European Border and Coast Guard Agency (Frontex) and of the European External Action Service (EEAS) following the Lisbon Treaty is important in its own right and has also increased the significance of instruments such as the EU Guidelines on Torture (Council of the European Union 2012). Moreover, Article 6.2 of the Treaty of Lisbon made EU accession to the Convention a legal obligation, and thus directly engaged with both its jurisprudence and enforcement mechanisms. However, following the rejection of the draft accession agreement by the European Court of Justice in 2015 this seems a somewhat distant prospect.13

Above all else, however, is the fact that during the last 15 years of its work the CPT has been working in a context that few thought possible: a context in which, despite the absolute prohibition of torture, inhuman or degrading treatment or punishment set out in Article 3 of the Convention and other international human rights instruments, arguments in favour of resorting to such practices have been advanced in the wake of the so-called “war against terror” (Levinson 2004; Roth and Worden 2005; Ginbar 2008; Greenberg 2008; Waldron 2010; Luban 2014). Europe has found itself both a facilitator of, and a destination for, “extraordinary rendition” (Council of Europe 2006; European Parliament 2006),14 while allegations and evidence of torture and ill-treatment by States Parties to the European Convention for the Prevention of Torture – in both the more distant and recent past – continue to emerge. Indeed, at the time of writing an application has been put in train to reopen the seminal case of Ireland v. the United Kingdom before the European Court of Human Rights on the basis of information unknown at the time of the previous judgment. If the purpose of the European Convention for the Prevention of Torture was to lessen an already low risk of torture and ill-treatment within member states of the Council of Europe, the reality is that it has been addressing an ever-rising tide of pressures in favour of ill-treatment and mounting evidence of ill-treatment, both past and present.

If the work of the CPT has now to be seen as part of a very much more complex institutional, normative and political matrix than was the case at the time of its adoption, it must also be acknowledged that its work has played a major role in shaping and influencing many of the more positive of these developments. In particular, the work and practice of the CPT was a major influence on the work and practice of the SPT in its early years (Casale 2009: 10-11) and continues to be of major practical significance to both the SPT and to NPMs operating within the OPCAT framework. The interrelationship between these bodies sharing a common working methodology of preventive visits to places of detention is increasingly significant and will therefore be explored in more detail later in this chapter. A second area in which the work of the CPT has had greater significance than was originally anticipated has been in relation to the work of the European Court of Human Rights. This will be outlined below and considered in more detail throughout this book. It is important to note that the subtle but significant changes in the direction and focus of the Court’s work in response to caseload and other pressures from member states of the Council of Europe means that the nature of this relationship is likely to continue to develop.

The sections that follow will explore in more detail both the background to and origins of the European Convention for the Prevention of Torture, the current scope of its application, its relationship with OPCAT, including the SPT and NPMs within the Council of Europe area, and, in outline, the European Court. It is beyond the scope of this book to focus in detail on the many other, broader, contextual developments that have been briefly introduced above, but they will be drawn on at various points in the book where they help illustrate and explain the approach and practice of the CPT.

II. THE BACKGROUND AND ORIGINS OF THE CPT AND OPCAT

As mentioned above, the origins of the European Convention for the Prevention of Torture lie in proposals made for the adoption of an optional protocol to UNCAT (Evans and Morgan 1998). UNCAT was the product of a sustained international campaign against torture that gathered momentum throughout the 1970s and led to the adoption of the 1975 UNDeclaration against Torture (Rodley and Pollard 2009: 18-43) and, in 1984, UNCAT itself (Burgers and Danelius 1988; Nowak and McArthur 2008). The retired Swiss banker Jean-Jacques Gautier, inspired by the work and practice of the International Committee of the Red Cross (ICRC), proposed that an international body be established that would be able to conduct unannounced visits to places where persons were deprived of their liberty, with a view to addressing concerns relating to torture and ill-treatment.15 The essence of what was being proposed was summed up by Gautier as being a relatively simple scheme in which:

an international committee elected by an assembly of the Member States of the Protocol would be empowered to send to the territory of each of these States on a regular basis delegates authorised to visit, without prior notification, any centre for interrogation, detention or imprisonment. The Committee will then inform the State concerned of the finding made by its delegates and will make an effort, if necessary, to bring about an improvement in the treatment of those in detention. In the event of disagreement as to the Committee’s finding or as to the implementation of its recommendations, the Committee will be able publish its findings. (Gautier 1979: 32)

So described, this approach is instantly recognisable in both the European Convention for the Prevention of Torture and OPCAT today. But both had a long gestation. In 1977 Gautier established the Swiss Committee Against Torture (SCAT)16 and later that year a group of experts, under the chairmanship of Professor Christian Dominicé, helped shape Gautier’s ideas into a draft convention concerning the treatment of prisoners deprived of their liberty. Shortly afterwards the UNGeneral Assembly requested the UN Commission on Human Rights to commence drafting a UN convention against torture and thought was given to this being suggested as a model for the convention itself. However, at a conference at St Gallen in June 1978, it was decided that the “visit-based” model might best be proposed as an optional protocol to a convention based on the model of other crime prevention treaties. This finally came about on 6 March 1980 when Costa Rica submitted the draft of an optional protocol to the UN Commission on Human Rights’Working Group at the request of the International Commission of Jurists (ICJ) and SCAT.17 However, it did so on the express understanding that it would not be given any consideration until the convention itself had been adopted – and thus as far as the UN process was concerned the proposal was stillborn. It is important to note that there was a positive decision not to pursue the project at the UN level at that time, based on the belief that it was well in advance of what might be politically acceptable to the international community as a whole. It is also important to note that, at the time this decision was reached, it was also agreed by the supporters of the scheme that they should switch their focus to the regional level and try to establish such a mechanism within the Council of Europe. Thus less than a year after the tabling – and mothballing – of the Costa Rica draft at the UN, the Parliamentary Assembly of the Council of Europe considered the “Meier Report”, which examined the progress being made towards the adoption of a UN torture convention (Council of Europe 1990).18 Echoing criticisms made by Gautier, the Meier Report argued that the optional protocol avoided the complexity and slowness of the quasi-judicial processes found in the draft convention and that its approach was “the right one for strengthening the effectiveness of the Convention” (ibid.: para. 13). The Meier Report and its conclusions were endorsed by the Parliamentary Assembly early in 1981.19

Later that year, and in the wake of motions raising questions of torture within Council of Europe countries, the Chair of the Legal Affairs Committee, Noel Berrier, submitted an “introductory memorandum” concerning torture that for the first time formally introduced the idea that such a system be adopted at the regional level, commenting that “the countries of Europe might set an example and institute such a system among themselves in the framework of the Council of Europe, without waiting for the proposal to be implemented at the world level” (Council of Europe 1981a: para. 13). Pandering somewhat to this display of European complacency and superiority, the ICJ and SCAT offered to draft a regional convention or optional protocol to the European Convention on Human Rights that, when completed, was incorporated in the final version of the “Berrier Report” (ibid.).20 The Parliamentary Assembly duly adopted the report and called on the Council of Ministers to adopt the draft convention.21 The Committee of Ministers responded by requesting its Steering Committee for Human Rights (CDDH) to consider the draft convention and submit proposals to it.22 In March 1984 the CDDH delegated this task to a Committee of Experts23 and in November 1986 – a little over two-and-a-half years later – the CDDH finalised the text and transmitted it to the Council of Ministers, which adopted the European Convention for the Prevention of Torture on 26 June 1987. Perhaps the most major change in the European Convention for the Prevention of Torture from the ideas originally developed by Gautier and others was that the CPT should consist of a number of members equal to that of the number of states parties, and that those members themselves should be involved in conducting the visits to places of detention. Rather than a committee overseeing the visiting work of others, it would be a body of international visitors. The convention was opened for signature on 26 November 1987 and quickly garnered the seven ratifications needed to trigger its entry into force on 1 February 1989.

The European Convention for the Prevention of Torture is in some ways a surprisingly sparse text that sets out the basic contours of the system it establishes with a degree of generality. This is only partially mitigated by its Explanatory Report, which also tends towards the expository rather than the elucidatory. This may at least in part be a reflection of the belief that in establishing such a system Europe was setting an example to others rather than responding to a pressing need. It may also have reflected a view that a “preventive” and “non-judicial” mechanism working co-operatively with states on the basis of confidentiality would pose few problems for European states since this was inherently less intrusive and controversial than existing judicial processes determining whether states were in breach of their obligations under the European Convention on Human Rights. The work of the CPT in its first few years was, however, enough to dispel such thoughts.

Once Europe had adopted the European Convention for the Prevention of Torture it was inevitable that attention would return to the UN sphere and that the experience of the CPT would influence the development of OPCAT. Indeed, in March 1989 the UN Commission on Human Rights justified postponing consideration of OPCAT for a further two years “in order to take note... of the experience of the Convention for the Prevention of Torture”. The ICJ and SCAT responded to this challenge by hosting a seminar in 1990 that resulted in a new draft, which was tabled by Costa Rica in January 1991. From 1992 to 2002 an open-ended Working Group met for two weeks annually to develop the text of OPCAT. This is not the place to consider its drafting history in detail (Evans and Haenni-Dale 2004; Murray et al. 2011), but it is necessary to highlight one key feature of the process and the resulting text, which is of relevance for a consideration of the context in which the CPT works today. Unsurprisingly, the basic mandate of the SPT is largely similar to that of the CPT, though with some notable differences that will be touched on when necessary throughout this book. There is, however, no counterpart to the provisions in OPCAT concerning NPMs in the European Convention for the Prevention of Torture and, since NPMs now form an essential element of the landscape within which the CPT operates, it is necessary to set out in more detail the essence of their mandate, role and function within the OPCAT system.

OPCAT established what has become known as a “twin-pillar” system, combining an international and national preventive visiting system. The reason for this is that by the end of 2000 it had become clear that the very idea of a body of independent international experts having a mandate to visit places of detention in states parties in the manner provided for under the European Convention for the Prevention of Torture remained very controversial at the UN level. As a means of ending the negotiating deadlock, Mexico presented a radically different proposal (the “Mexican Draft”) on behalf of the Group of Latin American and Caribbean Countries (GRULAC).24 In outline, the draft, dated 13 February 2001, sought to refocus the optional protocol on the role to be played by national visiting mechanisms. Rather than visits to places of detention being carried out by an international body, it proposed that states should establish a national system of preventive visits, which would be supplemented by the international visiting body should this prove necessary. It was in this way, and at what proved to be a very late stage in the drafting process, that the idea of NPMs was introduced into the OPCAT framework. Despite the hostile response that this provoked both from some NGOs25 and state representatives, this opened up the way for a compromise that allowed for the adoption of OPCAT by the UN General Assembly the following year. The idea that national mechanisms have a role to play in protecting human rights was hardly controversial in the field of torture prevention at the time.26 The novelty was to require states to utilise such mechanisms in combating torture as a matter of international legal obligation. Although the inclusion of NPMs into the draft of the optional protocol was in some ways merely a tactic by which to diminish either the case for, or opposition to, an international visiting mechanism, it quickly became apparent that there was an important role for both.

OPCAT does not require that states parties establish any new human rights bodies or mechanisms. Rather, Article 17 requires that states “maintain, designate or establish” within one year27 of the entry into force of OPCAT28 “one or several independent national preventive mechanisms for the prevention of torture”. As a result, whether a state needs to create a new body depends on how comprehensive a system of appropriate mechanisms29 is currently in place, their powers and their independence. Article 18 obliges the state to guarantee the “functional independence” of the mechanisms and their personnel and ensure that their personnel have the abilities and resources necessary to carry out their functions.30 Those functions are set out in Article 19.a and, unsurprisingly, focus on the need to ensure that the mechanisms can exercise a preventive mandate by conducting regular visits to places of detention as defined in Article 4 and to make recommendations to the national authorities, based on UN norms, concerning the places, conditions and forms of treatment encountered in the course of visits (Article 19.b). In addition, the NPMs are also to have a more general and more broad-ranging power to “submit proposals and observations concerning existing or draft legislation” (Article 19.c). This takes the mandate of the NPM beyond that of a “visiting body” by requiring that it also have systemic functions more akin to those more usually accorded to national human rights institutions than inspectoral bodies.

The state is obliged to “examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures” (Article 22). This is significant, since it means that the role of the NPM is not only to report and recommend, but also to engage in active follow-up of its recommendations with the state. Likewise, the state is required to respond to its recommendations in the same manner as it is to respond to those of the SPT. It is also important to note that the reports and recommendations of the NPMs are not confidential and states are required to publish and disseminate their annual reports.

OPCAT expressly provides for a number of essential capacities that NPMs must enjoy if they are to be properly configured in accordance with its framework. These largely mirror the requirements for effective access to persons and places of detention that are to be enjoyed by the SPT – as indeed the CPT under the framework of the European Convention for the Prevention of Torture – with Articles 20.a to 20.c providing for access to information concerning numbers of persons in places of detention and the number and location of the latter, access to all information referring to the treatment of detainees and their conditions of detention and, critically, “[a]ccess to all places of detention and their installations and facilities”. It also ensures that it has the opportunity to interview detainees, and any others who they believe have relevant information, in private. It further confirms that the NPMs enjoy “[t]he liberty to choose the places they want to visit and the persons it wants to interview” (Article 20.e).

It is evident that NPMs represent – or should represent – a powerful new force operating at a national level in a manner akin to that of both the CPT and SPT. This inevitably raises questions concerning the relationships between these bodies and this will be looked at in section IV (de Beco 2011: 257). Before doing so, however, it is necessary to set out the extent to which there is a practical overlap between the work of these various bodies.

III. THE SCOPE OF THE WORK OF THE CPT AND OF THE SPT AND NPMS IN THE COUNCIL OF EUROPE AREA

The CPT today

When the European Convention for the Prevention of Torture was adopted in 1987 few would have foreseen how its reach would so rapidly extend across Europe – and, indeed, beyond. When it entered into force in February 1989 the convention bound only eight of the then 23 member states of the Council of Europe. But a year later, in December 1990, it had been ratified by 20 of the Organisation’s then 25 member states. The political changes ushered in by the collapse of communism and the Soviet Union in central and eastern Europe opened up the prospect of further expansion and in 1993 the Committee of Ministers of the Council of Europe adopted the First Protocol to the convention, intended to permit non-member states of the Council of Europe to become, by invitation, parties to this convention. By the time the First Protocol entered into force on 1 March 2002 it had already become a dead letter.31 The Organisation had already grown to 43 members, of which 41 were already parties to the convention.32 The Council of Europe now has 47 members, all of whom are parties. This has not been accidental: since 1994 accession agreements to the Council of Europe have required that new member states become a party to the convention, inter alia, within one year of their joining and while this has not always been strictly adhered to, it has ensured that the geographic reach of the convention has, in general, kept pace with the Organisation’s expanding membership.33

The work of the CPT is not limited to Europe, but extends to the overseas territories over which member states exercise authority. On this basis, the CPT has conducted visits to, inter alia, the Netherlands Antilles34 and Aruba, Ceuta and Melilla, French Guiana, Gibraltar, Greenland, Martinique and Réunion. On the other hand, it remains the case that not all territories that fall under the jurisdiction of states parties are within the scope of the European Convention for the Prevention of Torture. Article 20.1 permits states, at the time of signature, ratification or accession, to list the territories to which the convention is to apply and Article 20.2 to extend that list. The original ratification of the UK was in respect of the United Kingdom of Great Britain and Northern Ireland, Jersey and the Isle of Man. It was subsequently extended to Gibraltar in 1988, Guernsey in 1994 and the Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus in 2013. As a result, the convention is still inapplicable to the majority of the remaining overseas territories of the UK. Indeed, it should be noted that not all places of detention under the jurisdiction of states parties are, at any given moment, necessarily within the jurisdiction of the CPT. Article 17.3 provides that:

[t]he Committee shall not visit places which representatives or delegates of Protecting Powers or the International Committee of the Red Cross effectively visit on a regular basis by virtue of the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8th June 1977 thereto.35

However, this does not appear to have been a significant limitation on the work of the CPT in practice.36

In some instances, the CPT also has authority to work beyond the confines of the territorial jurisdiction of its member states. For example, it has been empowered to exercise a visiting mandate in Kosovo37 on the basis of an agreement entered into between the Council of Europe and the United Nations Interim Administration Mission in Kosovo (UNMIK) in 2004 regarding UN-run detention facilities and, as regards NATO-run Kosovo Force (KFOR) facilities, in an exchange of letters between the Council of Europe and NATO in 2006.38 It should also be noted that the CPT has itself entered into arrangements with international criminal tribunals that have a responsibility for overseeing the implementation of sentences being served by convicted prisoners within States Parties to the European Convention for the Prevention of Torture.39 Strictly speaking, this ought to have been unnecessary as those serving sentences within the jurisdiction of states parties automatically fall within the visiting mandate of the CPT. The arrangements are, however, of a rather different, contractual nature, in that the costs of the CPT in undertaking such visits are to be covered by the international tribunals rather than the Council of Europe. The CPT has also extended its range of activities by examining the treatment of foreign nationals during air removal operations to countries that are not states parties to the convention. It has not, however, been able to disembark to observe the processes within the territory of the receiving state, though it has requested that arrangements be made.40

Beyond this, Article 2 of the European Convention for the Prevention of Torture provides that “[e]ach Party shall permit visits... to any place within its jurisdiction where persons are deprived of their liberty by a public authority” (emphasis added). The Explanatory Report says nothing about the meaning of this, but the equivalent wording in Article 1 of the European Convention on Human Rights, which provides that rights shall be secured “to everyone within their jurisdiction”, has given rise to extensive debate. It is beyond the scope of this chapter to examine this debate in detail but, in general, the strict approach taken by the European Court of Human Rights in the case of Banković and Others v. Belgium and Others, where it stressed that jurisdiction was essentially territorial and so states could only be held responsible for actions taking place or taking effect outside of their territory on an exceptional basis, has been progressively relaxed.41 While this approach has never been officially repudiated – and is routinely cited by the Court with approval42 – in the case of Al-Skeini and Others v. the United Kingdom the Court set out its current approach in a way that renders the Convention applicable to a broad range of situations in which the state concerned is exercising “effective control”.43 One such situation is where the state is an occupying power, another is where through the operation of its armed forces abroad individuals are brought within the power of the state’s agents and thus within its jurisdiction. Thus in Al-Saadoon and Mufdhi v. the United Kingdom the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Recent decisions appear to have taken an even wider view of what falls “within the jurisdiction” of the state for the purposes of Article 1 of the European Convention on Human Rights,44 and a recent decision of the High Court of Justice of England and Wales takes this even further again, concluding that “the exercise of powers normally exercised by the government of the territory concerned or the exercise of physical power and control over that person” is sufficient to establish that a person is within the jurisdiction of the state for the purposes of Article 1 of the Convention and that this includes any form of coercive physical force.45

This issue need not be pursued further here. The question that does require further reflection is whether the broad scope of extra-territorial jurisdiction that flows from this approach to what falls “within the jurisdiction” of the state for the purposes of Article 1 of the Convention has any consequences for determining the range of places of detention that might be “within the jurisdiction” of States Parties to the European Convention for the Prevention of Torture under Article 2, and thus within the visiting mandate of the CPT. It seems clear that all formal places of detention operated by the armed forces or by other official agencies of states parties located in third countries are likely to be “within the jurisdiction” for these purposes when that state is an occupying power or is exercising effective control within the facility concerned. Whether more transient instances of detention might also be included is not as clear, though quite probable. It also seems clear that while the prohibition of torture and ill-treatment provided for in Article 3 of the European Convention on Human Rights would be applicable in absolute fashion, the preventive safeguards that might be expected to be in place would have to reflect the degree of control that the state in question was able to exercise as well as the overall context of the case.46 This immediately raises controversial questions concerning the applicability of the standards explored in this book to situations of extra-territorial application.

Finally, whatever the legal position might be, the reality is that the practical implications of exercising an international visiting mandate do require a considerable degree of compliance from the state whose facilities one wishes to visit. It may well be that the theoretical application of the European Convention for the Prevention of Torture to extra-territorial situations may ultimately be exactly that – theoretical. Nevertheless, there is practical worth in exploring the possibility since this may now have implications for the expectations of NPMs working within the OPCAT framework and that might not face the same range of practical impediments to the exercise of their mandate. It is, therefore, notable that the UK NPM established under OPCAT believes that it should have the power to visit detention facilities operated by UK forces abroad.47

OPCAT and the SPT

In order to understand the context within which the CPT now operates, and consider properly the relationship between the CPT and the bodies operating within the OPCAT framework (that is, the SPT and the NPMs), it is necessary briefly to survey the scope and work of those bodies within the European region.

Only states that are a party to the UNConvention against Torture may become parties to OPCAT and at the time of writing UNCAT has 162 states parties. In accordance with Article 28.1 OPCAT entered into force in June 2006 following its 20th ratification. The SPT first met in February 2007. It initially comprised 10 members but this number rose to 25 in February 2011, in accordance with OPCAT Article 5.1, which provided for this increase following the 50th ratification, which had taken place the previous year. Of the 20 states parties at the time of its entering into force, nine were from Europe48 and members of the Council of Europe as well as parties to the European Convention for the Prevention of Torture,49 while seven states parties were from the Americas50 and four from Africa.51 By the time that the election of the first members took place in October 2007 a further five European states had become parties, together with one American and two African states,52 meaning that exactly half were European. By the time the SPT first met and established its first plan of work, a further three European and one American state had become parties.53 Although the precise numbers have fluctuated somewhat, European states have comprised, and continue to comprise, about half of all states parties to OPCAT: at the end of 2016 there were 83 states parties, of which 38 were from Europe (all parties to the European Convention for the Prevention of Torture), 21 from Africa, 15 from the Americas and nine from the Asia-Pacific (SPT 2017a: 3). While this proportional predominance of States Parties to the European Convention for the Prevention of Torture within the OPCAT system will inevitably decline – at the time of writing only nine are yet to ratify OPCAT54 – it remains the case that there will be more states parties from the Council of Europe area than from any of the other regions for many years to come. The practical significance of this will be considered later.

As with the European Convention for the Prevention of Torture, questions arise concerning the application of OPCAT to the overseas territories of states parties and there are some divergences between them in this regard. OPCAT does not directly address the question of its territorial scope, other than providing in Article 29 that its provisions extend “to all parts of federal states without any limitations”. Nevertheless, and in accordance with usual practice, some states have made declarations concerning the scope of its territorial application. In particular, the Netherlands ratified only in respect of the Kingdom of the Netherlands in Europe, thus excluding its Caribbean territories from the scope of OPCAT that, it will be recalled, fall within the scope of the European Convention for the Prevention of Torture. It remains unclear whether, following the constitutional changes in 2010 that saw three of these territories integrated into the Kingdom of the Netherlands, those territories now fall within the scope of OPCAT obligations. It is, however, clear that Aruba, Curaçao and Sint Maarten do not. The scope of the obligations of the UK under OPCAT are also not entirely clear. Although no territorial declaration was made at the time of ratification, which was for the United Kingdom of Great Britain and Northern Ireland, in 2014 it notified the UN of the extension of OPCAT to the Isle of Man, which is a Crown Dependency. It may therefore be safely concluded that OPCAT does not apply to the other UKCrown Dependencies of Jersey and Guernsey (but to which the European Convention for the Prevention of Torture does apply) or to the British Overseas Territories (whereas the European Convention for the Prevention of Torture is applicable to Gibraltar) or to the Sovereign Base Areas of Akrotiri and Dhekelia (to which the European Convention for the Prevention of Torture is also applicable).55 It may be assumed (though it has not been tested) that OPCAT is applicable throughout the French overseas departments and territories. Nevertheless, it is clear that the European Convention for the Prevention of Torture has a somewhat broader scope of application than OPCAT in relation to both the Netherlands and the UK.

In one respect, however, the scope of application of OPCAT is broader than that of the European Convention for the Prevention of Torture. As we have seen, this convention excludes places of detention that are visited by the ICRC regularly or effectively (which, presumably, it is for the ICRC itself to determine) under the 1949 Geneva Conventions from the scope of its visiting mandate. There is no such limitation under OPCAT. There is therefore, an overlapping competence between the SPT and the ICRC, rather than the exclusionary relationship provided for under the European Convention for the Prevention of Torture. OPCAT also expressly provides that its provisions shall not affect the obligations of states under the 1949 Geneva Conventions and 1977 Protocols or the opportunity to avail themselves of the services of the ICRC outside the framework of international humanitarian law.56 In reality, both the CPT and SPT are likely to seek to resolve any issues that might arise through consultations with the ICRC so the difference is, in practice, slight.

National preventive mechanisms (NPMs)

Article 3 of OPCAT requires that all states parties shall “set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment”. The NPM is to be established within one year of OPCAT’s entry into force unless the state, at the time of ratification or accession, makes a declaration under Article 24 that permits it to delay doing so for up to three years and also permits it to request a further postponement of up to two years. By the end of 2016, 57 of the then 83 states parties had officially notified the SPT of the designation of their NPM and the establishment of 23 NPMs was officially overdue (2017a: 6). However, it is known that over 65 NPMs are currently in existence. Within the European region all OPCAT states parties have now established an NPM with the exception of Bosnia and Herzegovina,57 although many did not do so within the stipulated time frame.

NPMs are to be established and operate in accordance with the principles set out in OPCAT. But there is no one standard model or approach that is to be adopted in order to bring this about.58 Most European countries have adopted what has been termed the “ombudsman plus” model, in which the NPM function has been given to an existing ombudsman’s office, whose powers have been enlarged in order to invest it with the appropriate legal capacities to undertake the NPM mandate. Not all have followed this path, however. Some have designated an existing national human rights institution as their NPM (for example Turkey). Some have established new bodies to undertake the NPM functions (for example France and Switzerland), while others have assigned it to existing mechanisms and bodies, either with or without an overarching co-ordinating body (for example Malta, without a co-ordinating body, and the United Kingdom, with a co-ordinating body). Moreover, between NPMs that, at first sight, appear to share a common nature, there are in fact many points of difference. Within the dominant “ombudsman plus” model there are many variations. In some the NPM function is assigned to a discrete internal office with its own independent leadership (Georgia and Serbia). In others the NPM forms a separate unit but functions under the direct managerial control of the ombudsman (Sweden and Ukraine), or the NPM function is dispersed across the office of the ombudsman as a whole (Finland and Portugal). Some NPMs utilise civil society in their work, either directly (Denmark and Slovenia) or in the form of an advisory panel (Hungary). States with federal structures may have bodies operating at both a federal and regional level in tandem (Austria and Germany) whereas states with a politically devolved structure may have separate bodies working in each (the United Kingdom), and so on.

This is not the place to consider either the scope or diversity of the structural arrangement of NPMs or their respective merits and demerits (Steinerte 2014: 1). What does need to be noted is that there is as much variety as there are NPMs. Each state has constructed a model that it considers to be most appropriate for its particular circumstances. To this must also be added the diversity of human and financial resources made available to the mechanisms to undertake their work. Many NPMs consider themselves greatly under-resourced and this places practical constraints on the scope of their work. Nevertheless, the key point is that as a result of OPCAT, in 38 of the 47 States Parties to the European Convention for the Prevention of Torture there are now NPMs that are – or should be – routinely visiting places where persons are deprived of their liberty.

For the most part this has come about very recently, the majority of NPMs having been established after 2010. Many of them are only just beginning to amass the experience necessary to capitalise on their role. It must be stressed that NPMs are not solely domestic bodies but form part of the international framework established by OPCAT. In addition, NPMs are increasingly networking between themselves, sharing experiences and practices, meeting to discuss issues of common interest and, increasingly, offering mutual support. For example, from 2009 to 2012 the Council of Europe itself took the lead in heading up a European NPM project that organised discussion seminars and exchange visits, which included members of the SPT and CPT, and produces a bi-monthly European NPM Network Newsletter.59 In addition, regional networks of NPMs have been established, such as in south-east Europe, with their own structures of leadership. Similarly, more informal networks have been established in other parts of Europe. Equally, if not more importantly, many European NPMs have been involved in advising on the establishment of NPMs in other regions of the world, in training members and offering other forms of assistance and support.60 In short, European NPMs have themselves become significant regional and international actors in torture prevention work. They should therefore be understood as being not just national mechanisms but part of the international infrastructure of torture prevention alongside the CPT and SPT, between whom there is an increasingly complex web of relationships as they all increasingly engage in national, regional and international spheres as independent visiting bodies pursuing their distinct but interrelated mandates, to which we now turn.

IV. THE “TRIANGULAR RELATIONSHIP” BETWEEN THE CPT, THE SPT AND NPMS

The relationship between the CPT, the SPT and the NPMs has aptly been described as “triangular”, linking as it does three mechanisms engaged in preventive visiting across national, regional and international divides. While this provides a useful framework for analytical purposes, and will be used here to illustrate the nature of the relationships, it has to be remembered that there is in fact no such thing as a definitive NPM: each NPM is a distinct entity in its own right and has its own complexities. As a result, there exists a web of relationships of greater or lesser intensity between the CPT, SPT and 38 NPMs.61 An exploration of all these relationships is beyond the scope of this chapter, which is therefore limited to setting out the basic contours to the extent necessary to inform an understanding of the context in which the CPT works today. To that end, the following sections will sketch the formal relationship that exists based on the texts of the legal instruments and briefly consider a range of key practical issues including visits, guidance to NPMs, standards, working methodologies and the overarching question of how to achieve co-operation while working confidentially.

The CPT and the SPT

When the European Convention for the Prevention of Torture was drafted there was no other international body with a preventive visiting mandate other than the ICRC, references to which have been considered above. Nevertheless, it remains surprising that, apart from the fairly standard stipulation that it should not prejudice international agreements providing for greater protection of persons deprived of their liberty (Article 17.1), there is nothing in the text concerning more general engagement with others working in the field of torture and torture prevention. OPCAT is inevitably very different given that the European Convention for the Prevention of Torture existed when it was adopted and, unsurprisingly, the very need for its applicability and relevance, to those states that were a party to the European Convention for the Prevention of Torture, was called into question during its drafting.62 As a result, Article 31 of OPCAT addresses the relationship in a direct fashion, providing that:

The provisions of this 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.63

That is, we find here an express recognition of the desirability of avoiding duplication in each other’s work. Given that by the time OPCAT entered into force the CPT was already actively engaged in visiting many of its states parties, what does this mean in practice?

At one level, it could mean that the SPT ought to step back altogether from visiting those states that are routinely visited by the CPT. In its early years, this was the position in practice. With the exception of a visit to Sweden in its first year of operation (2007), and which was determined by drawing lots, the SPT refrained from formally visiting any European country until 2011, when it undertook a visit to Ukraine. Since then, it has undertaken visits to Council of Europe countries more frequently each year, initially with visits focusing on the work of the NPMs but latterly incorporating more extensive visiting of places of detention. So while the SPT has not refrained from visiting, it initially chose to concentrate its visits on aspects of its mandate that did not duplicate the work of the CPT. This is increasingly not the case. As a result, there is a heightened need for the CPT and SPT to think about how to operationalise Article 31 in order to avoid unnecessary duplication in their work, a topic that will be returned to in Chapter 8.

At the most basic of levels, however, there is a need to ensure that the SPT and CPT do not both undertake visits to a country in close succession.64 Moreover, the co-operative dialogue that the CPT and SPT both engage in with states is, in its design, an ongoing one. The dialogue around a specific visit is lengthy for both bodies, and for the CPT that discussion often becomes caught up in further discussion ensuing from later visits. In any event, it is impossible altogether to avoid the situation where the respective dialogues the CPT and SPT have with states parties arising from their visits are taking place in parallel with each other. Which means that there are practical reasons why the CPT and SPT need to engage with each other, while, of course, respecting the principles of confidentiality. How is this to be done?

It is important not to approach this question in an overly theoretical fashion. In the early years following the establishment of the SPT this was easy enough since four of the 10 original SPT members were either serving or former members of the CPT65 and the first Chair of the SPT was concurrently President of the CPT. From the outset there was a high degree of inter-connectedness between the CPT and SPT. Experts and secretariat members who supported some of the first SPT visits had also worked in various capacities with or for the CPT. At the time of writing, three SPT members are former members of the CPT while others have considerable experience as experts who have participated in the CPT or have extensive academic and practical knowledge of both systems. In short, there is a wealth of common knowledge and practice.

The impact of these high levels of shared knowledge and understanding must not be overstated. Each body works within its own organisational structures, which have their own practical dynamics and consequences. Although the CPT and SPT have occasionally invited representatives to each other’s meetings (CPT 2007a: para. 19; CPT 2008a: para. 22; CPT 2013a: para. 28) these are largely formal encounters that, while valuable, do not really provide an opportunity to probe substantive and practical issues in any meaningful way, let alone forge common positions on general issues or on particular country issues or situations. To that extent, the formal relationship, while cordial and valuable, remains rather underdeveloped and probably falls short of what might be regarded as institutional co-operation as envisaged by Article 31.66 More useful, in practice, are the frequent informal meetings that take place in the context of the many conferences and seminars on torture and torture prevention that members and secretariat staff of both bodies routinely attend.

This rather loose relationship means that there is the potential for disjuncture regarding the ways in which the CPT and SPT work and, more importantly, in the standards they advance and the recommendations they make. These issues were discussed at length at a major conference in Strasbourg in 2009 marking the 20th anniversary of the CPT – tellingly, convened by the CPT in conjunction with the APT, with SPT members attending as invitees – and it is instructive to quote from the foreword to the conference proceedings, in which the conveners observed:

With more actors on the stage, there is a greater need for coordination and to share information about what each body is doing, how they are going about their tasks and what they are finding. It is also important that preventive bodies do not develop contradictory and diverging standards but instead ensure a degree of coherence. (Council of Europe/APT 2010: 7-8)

The very point of a preventive approach is to suggest to states what they ought to do in order to try to reduce the likelihood of a breach of the substantive standard, and it is easy to see that suggesting different preventive strategies or priorities might be problematic. As will be shown in later chapters, the CPT has set out its standards in some detail and over a considerable period of time. Could this be undermined by the SPT setting out different standards?

In practice, the SPT has gone a long way to mitigate this risk by consciously deciding not to set out formal statements of standards. Nor does it have a “hidden primer” of standards on which it draws. Rather, it has taken the view that “there is no logical limit to the range of issues that, if explored, might have a preventive impact” (SPT 2010) and, as a result, there is no need to be limited to the application of a given set of “standards” as such.67 The guiding principle behind the SPT’s approach is that:

there is more to the prevention of torture and ill-treatment than compliance with legal commitments. In this sense, the prevention of torture and ill-treatment embraces – or should embrace – as many as possible of those things which in a given situation can contribute towards the lessening of the likelihood or risk of torture or ill-treatment occurring. Such an approach requires not only that there be compliance with relevant international obligations and standards in both form and substance but that attention also be paid to the whole range of other factors relevant to the experience and treatment of persons deprived of their liberty and which by their very nature will be context specific. (SPT 2010)

By taking this approach, it has been possible to avoid becoming ensnared in discussion of applicable standards and focus on the crafting of recommendations that are relevant to the particular situation in hand, inspired by as many sets of standards as it seems appropriate to consult and draw inspiration from. The SPT has taken the view that “it is appropriate to focus on those issues that, in the light both of its visit to the state party in question and its more general experience, appear to it to be most pressing, relevant and realizable” (ibid.: para. 5.f). There is nevertheless a degree of disingenuousness about this stance. At some point there has to be some reference to what might be considered the most appropriate response to a situation. It cannot all be context driven, not least because the international framework provides an element of that context. Nevertheless, at a formal level, and since there is no shortage of standards, the SPT’s approach is not to endorse or replicate the standards articulated by others but to focus on what using such standards in a preventive fashion might mean in practice. For current purposes, this means that there is, at least in the near future, no need for the CPT to be concerned about the SPT propagating “rival” standards to its own and as a result there is, in the chapters that follow, no need to “compare and contrast” the work of the CPT and SPT in this field. Nevertheless the CPT ought to be alert to the nature and focus of SPT recommendations as these will certainly convey a flavour of its thinking as regards what it believes to be of significance.

The SPT and the NPMs

As has been seen, one of the major contributions of OPCAT has been to require the establishment of NPMs in states parties. It is beyond the scope of this chapter to consider the role and function of NPMs in detail. What is important to note is that OPCAT obliges the SPT to undertake a broad range of tasks in relation to NPMs, both regarding their establishment and, once established, their day-to-day operational activities. Indeed, OPCAT Article 20.f envisages something of a “triangular” relationship between the SPT and the NPM and state party in question: it requires that NPMs have “[t]he right to have contacts with the Subcommittee on Prevention, to send it information and to meet with it”. This is the counterpart to Article 11.b.ii of OPCAT that mandates the SPT to “[m]aintain direct, if necessary confidential, contact with the national preventive mechanisms”. The web of relationships is completed by Article 12.c, under which states parties undertake to “encourage and facilitate contacts between the Subcommittee on Prevention and the national preventive mechanisms”. There should, therefore, be a fluid and ongoing set of relationships between them.

The relationship between the SPT and NPMs is not, however, limited to one of oversight and support. NPMs are a major source of information that can inform the visiting programme of the SPT, and the SPT takes time to meet with the NPM (if established) during all of its official visits, irrespective of whether or not the visit has an NPM focus. The reports produced by the SPT after its visit, like that of the CPT, are confidential and can only be made public with the consent of the state concerned. However, OPCATArticle 16.1 permits the SPT to “communicate its recommendations and observations” to the NPM on a confidential basis, “if relevant”. It has done so on a number of occasions. The purpose is to permit the NPM to assist the SPT in the follow-up to its reports and this highlights the extent to which the NPM, while a “national” mechanism, is also recognised as having a distinct role within the international system established by OPCAT. Both before, during and after visits, NPMs are important partners and sources of reliable information.

The CPT and the NPMs

There are, then, strong links between the SPT and NPMs that are growing ever stronger. Moreover, NPMs are, legally speaking, bodies operating within the OPCAT system, not under the European Convention for the Prevention of Torture. Nevertheless, the CPT can hardly be expected to be indifferent to the establishment of national bodies focused on preventive visits to places of detention. This raises the question of the nature of the relationship between the CPT and NPMs established within the OPCAT framework.

The CPT, while welcoming the establishment of NPMs, initially approached them with some caution. The 2009 conference on “New partnerships for prevention in Europe” marked an important development, as it viewed NPMs as a part of the context in which the CPT was working, and focusing on how to optimise their relationship. That vision, however, was still something of a one-way street. The background document prepared for the conference stated: “it is true to say that, to date, CPT delegations visiting States Parties will meet with NPMs and that, although there will be an exchange of views on particular topics, the flow of information will tend to be in one direction – towards the CPT”. The chief reason for this concerned confidentiality, an issue briefly considered in the next section. The approach of the CPT appeared to be not dissimilar from its approach to domestic civil society – a potentially valuable source of information to inform its work and an additional voice to assist in the implementation of recommendations contained in published CPT reports, but little more. This cautious approach was reflected in CPT reports, which – doubtless also mindful of the primary role of the SPT regarding NPMs – tended to limit themselves to fairly general statements of support for the establishment and work of NPMs.

A significant development came about in 2012 when, in its 22nd General Report, the CPT included a section on “Relations between the CPT and national preventive mechanisms (NPMs)” (CPT 2012a: paras. 27-52). This presented the nature of the relationship in much more positive terms, arguing that “from the outset of its activities, the CPT has been recommending the establishment of independent national structures” (ibid.: para. 27).68