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The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
I. The Objective and Background of the Convention
The Convention was concluded in the conviction that `the protection of persons deprived of their liberty against torture and inhuman or degrading treatment or punishment could be strengthened by non-judicial means of a preventive character based on visits.'7 In its operative part, the Convention does not set or specify standards, neither does it provide for any complaint or adjudicatory procedures. The objective of the Convention is more complex; it is not to apply the law to certain established facts or situations and, if the circumstances so demand, to condemn a certain state for malconduct. The object is, `in a spirit of cooperation and through advice, to seek improvements, if necessary, in the protection of persons deprived of their liberty.'8 The underlying idea is to monitor and thereby improve the environment, i.e. places where persons are deprived of their liberty up to a point where torture and inhuman or degrading treatment or punishment will come under routine control or will no longer occur at all. Toward this end, the Convention provides for a complex and sensitive mechanism of on-site inspections of prisons and other places of detention, involving communication and interaction between the Committee, its members, including experts, the government of the Party concerned and its competent authorities, private persons deprived of their liberty and other persons who might supply relevant information, including non-governmental organizations (`NGOs').9
As regards the background and the political circumstances surrounding the drafting of the Convention, in 1976 Jean-Jacques Gautier, the founder of the Swiss Committee against Torture, had already proposed the system of visits, as developed and practiced by the International Committee of the Red Cross (ICRC) in respect to prisoners of war camps and to all other places where persons are deprived of their liberty.10 In the course of the drafting of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment11 the government of Costa Rica submitted a draft Optional Protocol to the UN Convention against Torture for eventual consideration by the Commission on Human Rights, based on Jean-Jacques Gautier's idea to combat torture by non-judicial means of periodic visits of prisons and other places of detention.12
Given its novel approach and complex and sensitive character, it was not surprising that the Costa Rican draft Optional Protocol would prove controversial. While its fate as an additional protocol to the UN Convention against Torture was uncertain, initiatives were taken within the Council of Europe to realize Jean-Jacques Gautier's idea at the regional level with the view to set an example of how the system would function, thus preparing the ground for its realization at the universal level at a later stage. The initiative came from the Legal Affairs Committee of the Consultative Assembly and a draft European Convention was produced on its behalf13 by 1983. It took, however, another 4 years of debate, before the Committee of Ministers adopted on 26 June 1987 the final draft of the Convention.
8 See Explanatory report on the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Strasbourg 1989) paragraph 20 (the Expl. rep.). The explanatory report of the Committee of Experts drafting the Convention is considered as a means of authentic interpretation of the Convention, `and almost as having a kind of "binding force" of its own', cf. Cassese, supra note 1.
9 See the Convention Article 7ff. and Expl. rep. paragraphs 47ff. and below III.
10 For the drafting history see Cassese note 1, 130ff. and Expl. rep. paragraphs 1-11.
11 Rs. 39/46, 10th December 1984; reprinted in 15 EuGRZ (1985) 131ff.
12 UN Doc. E/CN.4/1409 (1980).
© 1990-2004 European Journal of International Law
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