The European Torture Committee: Membership Issues

Malcolm Evans and Rod Morgan¹

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The Committee established by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the CPT, consists `of a number of members equal to that of the Parties'.² As of 1 April 1994 25 States had signed and ratified the Convention. The Committee, however, comprised only 21 members. No member had yet been elected in respect of either San Marino or Hungary, which became parties to the Convention on 1 May 1990 and 1 March 1994 respectively or in respect of Slovenia, for whom the Convention will enter into force on 1 June 1994.³ In addition, no member had been elected to replace the member for Ireland who did not seek re-election in September 1993.⁴

The effectiveness and credibility of the CPT (which given its four years of operational existence is arguably already considerable⁵) depends crucially on the quality and continuity of its membership. The work of the Committee rests on it being provided by the Council of Europe with a budget adequate for it to be: serviced by a professional secretariat; assisted by competent experts; and able to carry out thorough and regular visits of inspection. These support facilities are likely to count for little, however, if the Committee itself lacks persons committed to the mandate provided by the Convention or short of the ability and experience to carry it through. In this brief paper we examine the characteristics of the members and the arrangements for their election to see whether they enhance the likelihood that the Committee will continue to grow in stature. We begin with the question of election.

I. The Mechanics of Election to the Committee

The articles of the Convention dealing with the election of CPT members have been found wanting in a number of respects. Under the scheme set out in the Convention, members are elected for periods of four years and may only be re-elected once. Three of the original members of the Committee, chosen by lot, were to have their terms of office reduced to two years. The purpose of this measure was to ensure an orderly turnover in membership. The latter provision made sense in the context of the very small Committee originally envisaged (in which it was planned that there should not be a representative of each State party⁶) but it made less and less sense in a Committee which is by now already large and, with the accession of former Warsaw Pact countries,⁷ is clearly destined to grow further in size.

A more serious problem is that the term of office of each member runs from the date of their election. This means that every time a new State becomes a party to the Convention another cycle of office is superimposed on the Committee. It also means that if an existing member resigns from the Committee the new member elected in respect of that country will serve a full four years rather than simply `serve out' the unexpired portion of the predecessor's term of office. Every time such an event occurs, the orderly cycle of elections is again impaired. This happened first with respect to Spain in 1990 and Portugal in 1991.⁸ The consequence is that after four years of life a most inconvenient schedule of elections has emerged.

The Convention entered into force on 1 February 1989. The first elections were held in September 1989, at which time there were fifteen State parties.⁹ However, only fourteen members were elected, since at this stage no member was put forward in respect of Malta.¹⁰ As has already been indicated, Spain `broke away' from this block of States due to the resignation of the original member. Further, the term of office of three of the original members was reduced to two years by virtue of Article 5(3).¹¹ In consequence, members of only ten States fell due for election. However, both the Italian member and President of the CPT, Professor Cassese, and the Irish member, Mr Mellet, resigned in September 1993. The election of a new member in respect of Italy was held at the same time¹² but the election of a new member for Ireland remains outstanding. In consequence, the current schedule of elections to the Committee is as set out below.

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1 Faculty of Law, University of Bristol.

2 Convention, Article 4(1).

3 Hungary ratified the Convention on 4 November 1993 and Slovenia ratified on 2 February 1994. The Convention enters into force on the first day of the month following the expiration of three months after the date of the deposit of an instrument of ratification (Article 19(2)). Romania also signed the Convention on 4 November 1993 but has yet to ratify. Following a decision of the Committee of Ministers on 30 June 1993 the Czech Republic and Slovakia are also regarded as signatories to the Convention as of 1 January 1993.

4 Mr Mellett had been the member for Ireland since September 1993.

5 See Evans and Morgan, `The European Convention for the Prevention of Torture: Operational Practice', ICLQ (1992) 41, 590-614; Morgan and Evans, `Inspecting Prisons: the View from Strasbourg', in R.D. King and M. Maguire (eds), Prisons in Context (1994); Murdoch, `The Work of the Council of Europe's Torture Committee', 5 EJIL (1994) 220.

6 See Cassese, `A New Approach to Human Rights: the European Convention for the Prevention of Torture', 83 AJIL (1989) 128, at 146.

7 Article 3 of Protocol No. 1 (See CPT/Inf (93) 17) amends Article 18 of the Convention so that `The Committee of Ministers of the Council of Europe may invite any non-member State of the Council of Europe to accede to the Convention.' This Protocol is designed to facilitate accession by the European States involved in the CSCE process which are not Council of Europe Members. The protocol will come into force on the first day of the month following three months after the date on which all parties have expressed their consent (Protocol No. 1 Article 8). This is not likely to occur in the near future. The Protocol was opened for signature on 4 November 1993.

8 This produced a rather peculiar situation as regards the Member for Spain. Mr Torres Boursault was elected as an original member of the Committee in September 1989 and was, therefore, due for re-election in September 1993. However, he resigned as a member in 1990 and was replaced in April 1990 by Mr Mohedano who himself resigned in 1993 when Mr Torres Boursault was again elected to the Committee. His term of office will now expire in May 1997. It is unclear, however, whether he can be eligible for re-election under the existing rules since it is at least arguable that he has already been `re-elected once'. No matter what the answer is to this question, it is clear that the election of the Spanish member has `broken away' from the original cycle of election.

Another alteration in the date of election was caused by the resignation in September 1991 of the Portuguese member, Mr Lopes Rocha (who had been first elected in June 1990), following his election as a Judge of the European Court of Human Rights. In September 1992 Mr Vieira Mesquita was elected member for Portugal.

9 Austria, Cyprus, Denmark, France, Ireland, Italy, Luxembourg, Malta, the Netherlands, Norway, Spain, Sweden, Switzerland, Turkey, United Kingdom.

10 Mr Borg was subsequently elected to the Committee in June 1990.

11 These being the members for Italy, Ireland and Cyprus, all three of whom were elected to a further four-year term of office in September 1991.

12 In effect, his decision to resign at this point simply restored Italy to the position it would have been in had Professor Cassese not been one of the members whose term of office was shortened to two years. Professor Cassese was subsequently elected to serve as a Judge, and President, of the Yugoslavia War Crimes Tribunal. This would also have been the position as regards Ireland but for the fact that no election was held. In consequence, the election of the Irish member has moved from the `regular' to an as yet unknown point on the `irregular' election cycle.

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