International Efforts to Combat Torture and Inhuman Treatment: Have the New Mechanisms Improved Protection? II. The Procedures: Parallels and Differences in Legal Structures and Practice Under the ICCPR states parties are obliged to report regularly on their efforts to implement the substantive provisions of the Covenant (Article 40). These reports are then discussed by the Human Rights Committee (HRC) with representatives of the governments concerned. In addition, the ICCPR provides for procedures for examining complaints submitted by states parties (Article 41) or, in the framework of an Optional Protocol, by individuals.3 The same procedures are contained in the UNCAT (Articles 19, 21 and 22). As with the ICCPR, the state reporting procedure is compulsory, while the complaint procedures are optional. In addition, however, the UNCAT is equipped with an entirely new inquiry provision (Article 20), which permits the CAT to conduct an inquiry whenever it receives `well-founded indications that torture is being systematically practised in the territory of a State Party'. On condition of the state party's consent, the inquiry may include a visit to its territory (Article 20, para. 3). States parties, however, may opt out of Article 20. The Special Rapporteur on Torture has established three procedures for responding to information received on alleged cases of torture. First, the Special Rapporteur sends a letter to the government of the country concerned. Second, an urgent appeal is submitted by the Special Rapporteur to the government when well-founded information comes to hand that certain individuals are in danger of being subjected to torture. While these two procedures were restricted to individual cases during the first years of his mandate, the Special Rapporteur has since enlarged their field of application with the aim of making a greater impact in those countries where the practice of torture is thought to be more pervasive.4 Third, the Special Rapporteur conducts visits to the countries against which allegations have been made, if their governments extend an invitation. The purpose of the visit is to examine the situation in loco and to discuss specific measures for improving the situation. At the European level, the ECHR provides for the examination of and binding decisions on complaints submitted by states or individuals. In contrast, the ECPT makes no provisions for judicial decisions, relying instead on its CPT to conduct fact-finding missions, including the inspection of places of detention, and to issue recommendations as a means of improving conditions for the prevention of torture and inhuman or degrading treatment.5 As procedures for state complaints have thus far not been relevant in the practice of the HRC and CAT,6 no further consideration is needed in their regard. The remaining mechanisms may be roughly divided into two categories: procedures based on a country-oriented approach and procedures related to individual cases.7 A country-oriented approach is inherent in the visiting procedures of both the ECPT and the Special Rapporteur as well as in the inquiry procedure contained in Article 20 UNCAT. The reporting procedures of ICCPR and UNCAT are also based on this approach. In addition, the Special Rapporteur may address problems concerning individual countries by means of correspondence with and urgent appeals to their governments. Although these procedures may be regulated by different rules, they share the aim of promoting improvements through an assessment of the legal structures and everyday realities of specific countries. Individual cases are relevant to these procedures only to the extent that they figure in the evaluation of the general situation. Separate mechanisms for processing individual complaints have been introduced by the ECHR, the Optional Protocol of the ICCPR and the UNCAT. Similarly, procedures relating to letter writing and urgent appeals to governments are used mostly to secure protection and redress for individuals, although they may also influence overall conditions. A. Procedures for Individual Cases A comparison of the procedures dealing with individual cases shows that the activities of the Special Rapporteur are complementary to the formal complaint procedures conducted by the HRC, CAT and the European Commission and Court. The Special Rapporteur's procedures, characterized by informality and rapidity, aim at encouraging local authorities to investigate accusations and to prosecute those responsible. The Special Rapporteur uses the `urgent appeal' to address governments on a preventive, humanitarian basis in order to secure the protection of endangered persons. In contrast, the complaint procedures provide for formal review by an international body whose rulings are to be implemented by local authorities. The UNCAT's formal complaint procedure is almost identical to that of the ICCPR's Optional Protocol,8 but differs significantly from that of the ECHR. Duplication is avoided by UNCAT9 and ECHR10 regulations which make inadmissible any complaints that are or have been pending before another international organ. In contrast, the ICCPR's Optional Protocol rules complaints as inadmissible only if they are currently pending before another international organ,11 with the result that the same case may be considered by the HRC after having been considered by the CAT or organs of the ECHR.12 A growing number of individual complaints have been addressed to each of these organs, although the CAT's procedure, applied in only 43 cases during nine years of operation, seems to have remained less well known.13 Furthermore, almost all of these complaints were directed against states of the Western world, the majority of them claiming a violation of Article 3 UNCAT, which forbids the expulsion of persons in danger of being tortured to their country of origin.14 This situation may be partly explained by the fact that the states that have accepted the procedure for individual complaints tend to be more democratic.15 B. Procedures with a Country-oriented Approach The international organs are aided in making informed recommendations by the procedures that include the possibility of fact-finding missions. However, there are substantial differences in relation to the preconditions for visits to a state in general, and to specific places of detention in particular. Further differences can be seen in rules concerning confidentiality. Whereas states parties to the ECPT are obliged to accept visits by the CPT at almost any time and to any place where people are being detained by a public authority,16 the Special Rapporteur and the CAT are dependent on an invitation from the state concerned. However, based on Article 20 UNCAT, the CAT may carry out and conclude an inquiry without conducting a visit, and the Special Rapporteur may communicate analyses of situations in specific countries together with recommendations for improvements to the governments concerned by means of an urgent appeal. Article 20 UNCAT, however, stipulates further conditions that must be met in order to initiate an inquiry. In particular, the CAT must have before it reliable information indicating the systematic practice of torture.17 Although action on the part of the Special Rapporteur does not formally depend on such conditions, he will clearly first need to establish that the practice of torture is resorted to with a certain degree of consistency before actively seeking a country's approval for a visit. Of course, such situations would be of particular relevance for the CPT within its regional limits. However, to date, there has not been verification of situations displaying a degree of severity such as to warrant a visit in accordance with one of the UN mechanisms for most of the states parties to the ECPT. The only exception in this regard is Turkey, to which visits have been conducted by each of the three organs.18 Significant differences among the procedures can be observed with respect to the publication of actions taken or planned. The Special Rapporteur may publicly announce a forthcoming visit and publish the resulting report in its entirety, as his mandate is based on the public 1235 procedure of the UN Commission on Human Rights. The CAT and CPT, on the other hand, have only limited options at their disposal. The CAT is bound to confidentiality for the entire duration of an inquiry, and may only publish a summary of the results in its annual report following the inquiry's conclusion,19 at which point consent of the respective government is no longer required. The CPT may give public announcement of a planned visit, and may publish names of the specific places that are inspected during the course of a visit, but the consent of the government is required in order to publish the actual visit report. Only under certain conditions - as an ultima ratio in the case of an uncooperative state party20 - may it resort to a `public statement'.21 These regulations also reflect differences in state party obligations for cooperation. While the CAT and the Special Rapporteur must rely on the willingness of governments to cooperate during the early stages of the procedures (invitation for and conduct of a visit), the CPT has far-reaching powers during this phase in line with states parties' firm obligation to cooperate. In further contrast, the ECPT's post-visit procedure aims to promote improvements through `quiet' cooperation, while the freedom accorded to the Special Rapporteur and the CAT to publish reports without the government's consent opens up the option of increasing pressure through public opinion. These different operative elements lead to the conclusion that the UN mechanisms would qualify as complementary to the CPT procedure, even in the case of visits to one and the same country. This is true at least until such time as the CPT report is published. In addition, one could expect the pressure on governments to increase with visits by both the CPT and one of the UN agencies, as such multiple visits express concern about a specific situation at different levels of the international community. On the contrary, it is difficult to imagine how the CAT and Special Rapporteur visits to the same country might be viewed as complementary. Their procedures seem different because of contrasting confidentiality regulations and formal aspects. The procedure conducted by the Special Rapporteur is public and of a consultative nature. The CAT's inquiry procedure is confidential until its conclusion and serves to determine whether or not torture in a particular state is practised systematically.22 In fact, however, visits by both organs to a certain country during the same period would prove redundant. Both agencies are bound by government approval for any investigative measure taken in the course of an inquiry. And differences with respect to confidentiality are less significant, given that the CAT may abandon the confidentiality rule at the conclusion of an inquiry. However, this question has proved to be largely academic as far as visits are concerned. The CAT has managed to conduct no more than one visit (Turkey) in nine years of operation. In contrast, the Special Rapporteur has conducted 18 visits as of December 1996.23 The CAT's lack of success cannot be explained by the argument that the countries visited by the Special Rapporteur were not accessible to the CAT, since the majority of these countries were states parties to UNCAT and had not opted out of Article 20. Instead, the reason may be found in the unfortunate combination of highly problematic preconditions for the initiation of an inquiry and the stigmatizing effects it produces. These factors result in many target states maintaining a strong interest in hindering the course of an inquiry. The burden of having to seek the target state's cooperation at every stage of the procedure opens the way to obstruction. However, one positive new development can be seen in the inquiry into the situation in Egypt, which was formally concluded in May 1996 after several failed attempts to receive approval for a visit.24 In this case, it was mainly NGO information that formed the basis for the Committee's conclusion that torture was being practised systematically. This approach, which is completely in line with UNCAT regulations, allows the Committee greater independence from the state party. The UNCAT's state reporting procedure is notably similar to that of the ICCPR, which results in important overlaps from a procedural point of view. The most important advance in the formulation of the UNCAT was the express provision for the Committee to make `general comments' on each specific state report (Article 19, para. 3). In contrast, the HRC has interpreted the respective regulations in the ICCPR (Article 40, para. 4) as permitting `general comments' only when these are directed to all parties to the Covenant. Despite strong criticism, the HRC has not taken the initiative of drawing up its `own reports' on specific state reports. Thus, the CAT was more likely to be the first UN body to react with specific comments on each and every state report.25 Nonetheless, developments in the committees' practices have been similar. In the beginning, individual members of the HRC voiced their concern about a state party at the end of each discussion. The CAT, too, restricted itself to single comments made by individual members and refrained from making collective evaluations. For both committees practice has since tended in the direction of concrete criticism issued by the committee as a whole. Indeed, this tendency has led to the introduction of a system whereby the committees issue a single evaluation of each state report debate. This system allows for remarks pertaining to diverse categories, including positive aspects; factors and difficulties impeding the application of the provisions of the Convention (or the Covenant); issues of concern; and recommendations. This dynamic interpretation of the Convention and the Covenant is likely to breathe new life into state reporting procedures, particularly by paving the way for concrete recommendations by the organs26. 3 A comprehensive analysis of the HRC's work is given by D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights(1991); cf. also Opsahl, `The Human Rights Committee', in P. Alston (ed.), The United Nations and Human Rights. A Critical Appraisal (1992) 369. It is especially interesting to note the criticism levelled by former HRC member Opsahl against the procedures for selecting HRC members, ibid, at 374. 4 For instance, urgent appeals were submitted to the government of Peru after a declaration of amnesty for human rights violators, to the government of Israel in reaction to a legislative proposal concerning the implementation of the UNCAT and to the government of Lebanon concerning the situation of certain prisoners. See E/CN.4/1996/35, para. 4. 5 The ECPT has been of great interest to researchers. See, in particular, Evans and Morgan, `Inspecting Prisons - The View from Strasbourg', 34 British Journal of Criminology (Special Issue 1994) 141; Kaiser, `Detention in Europe and the European Committee for the Prevention of Torture', 3 European Journal on Crime, Criminal Law and Criminal Justice (1995) 2; Murdoch, `The Work of the Council of Europe's Torture Committee', 5 EJIL (1994) 220; and D. Rouget, La Convention européenne pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (1995). 6 This irrelevance may be due to some extent to the complicated design of the procedures. Of more importance it would seem is the problem that potential complainants refrain from applying to one of the organs because of diplomatic considerations. Similarly, a state complaint within the ECHR is considered an `unfriendly act' (see M.E. Villiger, Handbuch der Europäischen Menschenrechtskonvention (1993), at 110). However, the ten complaints which have been examined under the respective provisions of the ECHR show that interests, including those concerning minorities, might overrule such diplomatic courtesies. 7 However, the different groups might influence each other in respect of thematic interpretation of certain terms and of standards applied. Of particular interest is the relation between the CPT on the one hand and the organs of the ECHR on the other. For instance, the CPT has designated some situations as `inhuman and degrading treatment', which probably would not have been subsumed under Article 3 ECHR by the Commission or the Court. For details see R. Bank, Die internationale Bekämpfung von Folter (1996), at 222 f. 8 For an analysis of the differences see Nowak, `The Implementation Functions of the UN Committee against Torture', in M. Nowak, D. Streurer and H. Tretter (eds.), Fortschritt im Bewusstein der Grund- un Menschenrechte. Festschrift für Felix Ermacora (1988), 493. 9 Article 22, para. 5(a) UNCAT. 10 Article 27(1)(b) ECHR. Cf. Villiger, supra note 5, at 59. ECHR organs do not consider the non-binding character of the decisions of other international organs as an obstacle to rejecting complaints. See also D. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (1995), at 626 f. 11 Article 5, para. 2 Optional Protocol. 12 Most states parties to the ECHR have avoided concurrence between ECHR procedures and the ICCPR's Optional Protocol by formulating reservations with respect to the Optional Protocol; see Pettiti, Decaux and Imbert, La Convention Européenne des droits le l'homme (1995), at 630. 13 As of May 1996. Cf. A/51/44 (Annual Report of the CAT), para. 229. 14 For a comparison of the jurisdiction of the ECHR organs on Article 3 ECHR and of the practice of the UNCAT on Article 3 UNCAT see Suntinger (1995), `The Principle of Non-Refoulement: Looking to Geneva Rather Than to Strasbourg?', 49 Austrian Journal of Public and International Law (1995) 203. 15 However, some of the states that have recognized the competence of the CAT under Article 22 of the Convention (e.g. Algeria and Turkey) are known for tolerating a widespread practice of torture. 16 Exceptions may be based on Article 9 ECPT. Despite fears expressed at the time the Convention entered into force, problems have not as yet arisen of states misusing these exceptions for the purpose of obstructing the work of the CPT. 17 For the criteria according to which torture qualifies as `systematic', see A/51/44 (Annual Report of the CAT), para. 214. 18 One new potential candidate for which visiting procedures may be initiated is Russia. Russia is a state party to the UNCAT, has been the subject of a Special Rapporteur's visit, and has signed the ECPT. The Special Rapporteur's report indicates that there are enormous problems in Russia, in particular with regard to conditions of detention. Cf. E/CN.4/1995/34/Add.1 (Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights Resolution 1994/37. Addendum. Visit by the Special Rapporteur to the Russian Federation. Geneva, 1995). 19 Article 20, para. 5 UNCAT specifies that the committee must consult the respective state party before publication. However, the committee is not bound by a negative response, and has, in fact, published summary accounts of its report without the consent of the states involved. 20 The other situation in which the CPT is empowered to make a public statement - the failure of a state to improve the situation in the light of the committee's recommendations (cf. Article 10 ECPT) - may be considered as a special case of lack of cooperation. 21 This measure has only been taken twice (December 1992 and December 1996) in relation to the situation in Turkey, in both cases because of a failure to improve the situation. However, the Committee recently indicated that an excessive delay in providing an interim response as an official reply to a CPT report could lead the Committee to make a public statement under Article 10, para. 2 ECPT (CPT, Sixth General Report (CPT/Inf (96) 21, para 10)). 22 This distinction has been put forward as an argument against the charge of procedural overlap by the former Special Rapporteur Kooijmans; see Kooijmans, `The Role and Action of the UN Special Rapporteur on Torture', in A. Cassese (ed.), The International Fight against Torture (1991) 56, at 71. 23 Visits have been conducted to Argentina, Colombia and Uruguay (1987), Peru, Turkey and Republic of Korea (1988), Guatemala and Honduras (1989), Zaire and the Philippines (1990), Indonesia and East Timor (1991), former Yugoslavia (1992, together with the country rapporteur), Rwanda (together with the country rapporteur), the Russian Federation and Colombia (joint mission with the Special Rapporteur on extralegal, summary and arbitrary executions) (1994), Chile (1995), Pakistan and Venezuela (1996). 24 The report was published as a part of the Annual Report. See Summary account of the results of the proceedings concerning the inquiry on Egypt. A/51/44 (Annual Report of the CAT), at 30-36. 25 Cf. Nowak, supra note 7, at 525. 26 This new system has made the state reporting procedure a source of information, offering a survey of the problems in a particular state in a separate context to that of the complicated Summary Records. The decision to make state reports available in cases of urgency constitutes a further positive innovation, as demonstrated by the HRC for the first time in the case of the former Yugoslavia in 1992; see Boerefijin, `Towards a Strong System of Supervision: The Human Rights Committee's Role in Reforming the Reporting Procedure under Article 40 of the Covenant on Civil and Political Rights', 17 Human Rights Quarterly (1995) 766. The CAT has not yet introduced such a practice.
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