MK_CompPaper

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) was created with the express intention of complementing existing Council of Europe mechanisms for the protection of human rights and, in particular, of strengthening the system of judical protection against ill-treatment afforded by article 3 of the European Convention on Human Rights. As the Explanatory Report to the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the Convention") put it:

"¼ this system [of judicial protection], which is based on complaints from individuals or from States claiming that human rights violations have taken place, could usefully be supplemented by non-judicial machinery of a preventive character, whose task would be to examine the treatment of persons deprived of their liberty with a view to strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading treatment or punishment.

For these reasons the present Convention establishes a Committee which may visit any place within the jurisdiction of the Parties where persons are deprived of their liberty by a public authority."

When carrying out such visits, the CPT enjoys extensive powers under the Convention: access to the territory of the State concerned and the right to travel without restriction; unlimited access to any place where people are deprived of their liberty, including the right to move inside such places without restriction; access to full information on places where people deprived of their liberty are being held, as well as to other information available to the State which is necessary for the Committee to carry out its task. The Committee is also entitled to interview in private persons deprived of their liberty and to communicate freely with anyone whom it believes can supply relevant information.

Moreover, visits may be carried out to any place "where persons are deprived of their liberty by a public authority". Consequently, the CPT's mandate extends beyond prisons and police stations to encompass psychiatric institutions, detention areas at military barracks, holding centres for asylum seekers or other categories of foreigners, and places in which young persons may be deprived of their liberty by judicial or administrative order.

Rapid ratification of the Convention is one of the undertakings which the Parliamentary Assembly seeks from all States which wish to accede to the Council of Europe; forty of the forty-one member States of the Council of Europe are now bound by the Convention.[1]

The CPT has been active for just over ten years, during which it has carried out nearly one hundred visits to States bound by the Convention. In the light of that experience, this paper explores the scope for complementarity between the non-judicial, treaty-based work of the CPT and the activities of other relevant Council of Europe bodies, both judicial (European Court of Human Rights) and political (Parliamentary Assembly, Committee of Ministers and Commissioner for Human Rights,).

2. Complementarity between non-judicial and judicial approaches to preventing ill-treatment: the CPT and the Court of Human Rights

The drafters of the European Convention for the Prevention of Torture envisaged the CPT as a non-judicial means to "supplement" the judicial protection afforded by the European Court of Human Rights. However, they were also concerned to ensure that the CPT would not usurp or duplicate the work of the Court.

The preamble to the Convention for the Prevention of Torture expressly notes that, in respect of persons who allege that they are victims of violations of Article 3 of the Convention on Human Rights, it is the machinery provided for in that Convention which is to operate. Further, Article 17 of the Convention for the Prevention of Torture makes clear that none of its provisions are to be construed as limiting or derogating from the competence of the Court, or from the obligations assumed by Parties to the Convention on Human Rights.

What, then, is the scope for complementarity between the work of the bodies - non-judicial and judicial - set up by these two Conventions?

Leaving aside the intended complementarity of purpose - the prevention of torture and inhuman or degrading treatment or punishment - there is no formal institutional relationship between the CPT and the Court. Nevertheless, while fully respecting the rules of confidentiality which bind both bodies, it is possible for relevant information to flow from the CPT to the Court and - at least potentially - from the Court to the CPT.

There are two main forms in which information generated by the CPT may become available to the Court. Firstly, the Committee regularly receives information about matters which fall outside its mandate, but within the competence of the Court (e.g. complaints from prisoners about the fairness of their trials). Such information is routinely transmitted to the Court, to be handled as the Court sees fit. This could be seen as a simple, informal, yet effective example of intra-institutional complementarity. Secondly - and far less straightforwardly - information generated by the CPT which enters the public domain (either through a State's decision to publish a CPT report, or the Committee's decision to issue a public statement[2]) is available to the Court when considering cases which involve similar facts/allegations.

i. the influence of the CPT on the Court

It is not my intention in this paper to delve deeply into the potential interplay between the CPT's findings and the jurisprudence of the Court. Nevetheless, it may be helpful to make a few brief comments on the subject, both in respect of Article 3 and Article 5 of the Convention on Human Rights.

the jurisprudence under Article 3

It seems clear from the jurisprudence under Article 3 of the Convention on Human Rights that the Court is far more interested in the CPT's findings-in-fact than in any opinion which the Committee may form on the basis of those findings[3].

This is consistent with the notion that the Court's jurisprudence under Article 3 represents a "point of departure" for the CPT, rather than a measuring rod by which the Committee must abide when forming its own view on whether a given situation constitutes "inhuman or degrading treatment or punishment". Since - in accordance with the Convention under which it operates - the CPT does not consider itself bound by the Article 3 jurisprudence of the Court, it would be quite unreasonable to expect the Court to consider itself obliged to homologate the CPT's opinions.

Nevetheless, in the recent case of Selmouni v. France[4], the Court noted that the "increasingly high standard" being required in the area of human rights and fundamental freedoms requires "greater firmness" in assessing breaches of the fundamental values of democratic societies. Recalling its doctrine that the Convention on Human Rights is a "living instrument", it indicated that certain acts which the Court had classified in the past as "inhuman and degrading" as opposed to torture could be classified differently in the future.

It is to be hoped that publicly-available information generated by the CPT has already played a part in raising standards in areas falling within its mandate. Judgements by the Court which accord substantial evidential weight to the Committee's findings-in-fact can only serve to reinforce the impact of the CPT's work.

an issue under Article 5

It is a curiosity of the Convention for the Prevention of Torture that, while the CPT is not bound by the Court's jurisprudence under Article 3, the Convention's notion of "deprivation of liberty" is to be understood "within the meaning" of Article 5 of the European Convention on Human Rights.[5]

In the early years of the CPT's work, this gave rise to an issue which could have become a "complementarity difficulty". The issue arose because not all Council of Europe member States shared the CPT's view that a stay in a transit or "international" zone could, depending on the circumstances, amount to a deprivation of liberty within the meaning of Article 5 (1)(f) of the Convention on Human Rights, and that consequently such zones fall within the Committee's mandate.

The judgement delivered on 25 June 1996 by the Court of Human Rights in the case of Amuur against France[6] can be considered to vindicate the CPT's view on this question and - in the process - to preserve a welcome degree of complementarity between non-judicial and judicial approaches to this question.

ii. the influence of the Court on the CPT

It is axiomatic that the jurisprudence of the Court is an important souce of inspiration for the CPT. However, might there be scope to enhance complementarity between the two bodies by fostering the flow of other relevant information from the Court to the CPT?

For example, in the course of its work examining individual applications, the Court may become aware of patterns of allegations which point to the existence of a more general problem, potentially falling within the CPT's mandate. Notwithstanding the strict rules of confidentiality which bind the Court as regards individual cases, perhaps some means could be found to enable the Court to alert the CPT to such matters. Let me be clear that this is not to suggest that the CPT might work as a kind of "research unit" for the Court; just as the Court is unfettered by the CPT's view of whether a given situation is inhuman or degrading, the CPT would remain free to make its own assessment of whether an issue raised by the Court warranted further examination.

More generally, in his conference paper, Mr Imbert suggests that, given the proliferation of human rights protection mechanisms within the Council of Europe, it could be useful to designate "liaison officers" or "contact persons" in each relevant sector, "non pour formaliser excessivement les relations entre les instances, mais pour créer un canal d'information structurel qui ne laisserait plus au hasard la connaissance mutuelle des activités des uns et des autres". Would the Court wish to be associated with any such initiative and - if so - could it provide an additional framework within which to enhance complementarity between the work of the Court and that of the CPT?

3. Complementarity between non-judicial and political approaches to preventing ill-treatment: operational effectiveness, monitoring and implementation

The CPT is not a political body; however, its work can have significant political implications, if the fruit of that work is fully exploited by the appropriate bodies within the Council of Europe.

The degree of complementarity between the Committee's non-judicial treaty-based work and political activities within the Council of Europe can have a bearing on the CPT's operational effectiveness, on the coherence of its contribution to the Council of Europe's monitoring activities, and on its success in securing the implementation of its own recommendations.

i. operational effectiveness

The European Convention for the Prevention of Torture provides the necessary legal framework for non-judicial monitoring of the treatment of detained persons. However, if the Committee which it creates is to remain operationally effective, the requisite human and budgetary resources must be placed at its disposal. This is the first context in which I wish to raise the question of complementarity between the non-judicial work of the CPT and political activities within the Council of Europe. More precisely: is there scope for political action within the Council of Europe to butress the operational effectiveness of the CPT?

The Parliamentary Assembly has taken a particular interest in strengthening the mechanism of the Convention for the Prevention of Torture. Indeed, in April 1997 (on the basis of the Jaskiernia Report[7]), the Assembly formally recommended that the Committee of Ministers "give favourable consideration to any request for further increase of the human and budgetary resources of the CPT".[8]

Here we see the Assembly - composed of representatives of the national parliaments of Council of Europe member States - acting as a kind of political lobbyist for the CPT's interests vis-à-vis the Organisation's Committee of Ministers.

The Ministers' Deputies formal response to the Assembly came nearly two years later, in January 1999[9]. In the reply which they adopted,

"The Committee of Ministers welcomes and fully agrees with the importance attached by the Assembly to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. In this context, the Committee of Ministers recalls the determination expressed by the Heads of State and Governments of the member States of the Council of Europe at their Second Summit to reinforce the means to prevent and combat torture and inhuman or degrading treatment or punishment".

In their reply, the Ministers' Deputies - composed of representatives of the Governments of Council of Europe member States, acting under instructions - can be seen to invoke the authority of Heads of States and Governments in support of the CPT's activities. With regard to the Assembly's specific recommendation on resource issues,

"The Committee of Ministers agrees with the Assembly concerning the desirability of reinforcing the human and budgetary resources of the CPT and informs the Assembly that, in the context of the implementation of the Action Plan adopted by the Strasbourg Summit, it has allocated additional resources to the fight against torture and inhuman or degrading treatment or punishment".

Taken at face value, this would appear to be a textbook example of intra-institutional complementarity. The Parliamentary Assembly highlights the importance of adequate resources for the CPT, and the Committee of Ministers apparently wholeheartedly agrees, and pledges to find the necessary funds.

Unfortunately, as the CPT records in its most recent General Report (submitted to the Committee of Ministers), "¼ the vast expansion of the CPT’s field of operations in recent years ¼ has not been matched by a corresponding increase in the Committee’s resources. ¼ As a result, the CPT’s effectiveness is being undermined; in particular, the Committee does not at present have the necessary resources for developing meaningful programmes of visits in certain countries with exceptionally large inmate populations in respect of which the Convention has recently entered into force"[10].

So, what does this tell us about the scope for political action within the Council of Europe to butress the operational effectiveness of the CPT?

An optimistic reading would be that the lag between expressions of political support at the highest level, and the provision of the necessary funds is no more than a temporary glitch, perhaps linked to current difficulties in adopting the Organisation's overall staff budget, and re-structuring its Secretariat. I should like to subscribe to this view, and would welcome any encouragement to do so.

A more cynical reading would be that it is much cheaper to issue expressions of political support for a non-judicial treaty-based body designed to prevent ill-treatment, than to provide it with the funds which it requires to be operationally effective.

ii. monitoring

The primary function of the CPT is to monitor the treatment of persons deprived of their liberty, with a view to strengthening their protection against torture and inhuman or degrading treatment or punishment.

"Monitoring" has become a fashionable term in recent years, and is now an activity in which a number of Council of Europe political bodies can claim to be engaged. In this context, I wish to examine the degree to which there can be said to be complementarity between the non-judicial treaty-based monitoring work of the CPT and the political monitoring activities of the Parliamentary Assembly, the Committee of Ministers and - with an eye to one possible future - the Council of Europe Commissioner for Human Rights.

The Parliamentary Assembly

In his opening statement at the CPT's 10th anniversary event in November 1999, the Clerk of the Parliamentary Assembly indicated that the Assembly "sees its co-operation with the CPT as fostering complementarity between legal and political approaches to the protection of human rights".

He based this claim, at least in part, on "the positive relations which exist between the CPT and the Assembly's Committee on Legal Affairs and its Monitoring Committee, which help to ensure that the CPT is able to take advantage of relevant information which already exists within the Organisation".

These positive relations have evolved over time, from beginnings which were perhaps less auspicious. For example, in May 1996, the Assembly's Committee on Legal Affairs and Human Rights transmitted information to the CPT which included allegations of ill-treatment of certain prisoners being held in secure units in the United Kingdom. Subsequent events are described in the Jaskiernia Report[11] as follows:

"The Committee on Legal Affairs and Human Rights, when transmitting the information to the CPT, had felt that the allegations were serious enough to justify a visit of the CPT to the indicated persons. Following an exchange of correspondence between the Chairman of the Committee on Legal Affairs and Human Rights and the President of the CPT, the matter was referred to the Bureau of the Assembly which in September 1996 inquired on the visit programme of the CPT including prospects for the year 1997. The President of the CPT replied that no visits were envisaged to the United Kingdom during 1996 and no indication could be furnished on the CPT's visiting programme for 1997.

A formal proposal by the Bureau of the Parliamentary Assembly to the President of the CPT followed in November 1996 whereby the importance and the urgency of a visit by the CPT to the above-mentioned British mainland prisons was stressed. The President of the CPT answered a week later that the CPT had considered all available information and reached the conclusion that a visit to the United Kingdom in order to examine the conditions of detention of certain prisoners held in secure units in English prisons was "not warranted at the present time""[12]

One senses from this account that the CPT's response to the initiative of the Committee on Legal Affairs and Human Rights may have been regarded by the Assembly as somewhat high-handed (or "complementarity-poor"?). From my particular vantage point within the intra-institutional web, I would prefer to present it as an illustration of one of the justifiable limitations upon complementarity between the treaty-based monitoring work of the CPT and the political monitoring activities of the Parliamentary Assembly.

As a treaty mechanism (composed of members serving in their individual capacities, not as representatives of the States in respect of which they were elected), the CPT is acutely conscious that it must be - and be seen to be - independent and impartial. Thus, while it greatly appreciates being provided with detailed information of relevance to its mandate, any suggestion that its treaty-based visiting programme might be shaped to fit the political imperatives of the Assembly is likely to fall on distinctly stony ground.

This now seems to be better understood, and Assembly committees regularly provide the CPT with relevant information, without seeking to influence its work. The CPT's current relations with the Committee on Legal Affairs and Human Rights, and with the Monitoring Committee could be characterised as an example of intra-institutional complementarity in action, even if those relations may be of a less symbiotic nature than the Assembly might originally have hoped.

The Committee of Ministers

In November 1994, in a Declaration on compliance with commitments accepted by member States of the Council of Europe[13], the Committee of Ministers decided to seek "greater efficacity in its procedures with a view to ensuring compliance with commitments, in the framework of a constructive dialogue." In April 1995, the Ministers' Deputies agreed that this "dialogue" - which was to become known as the Committee of Ministers' "monitoring procedure" - would be "based on the principles of non-discrimination and co-operation. It will not affect existing procedures arising from statutory or conventional control mechanisms".[14]

Committee of Ministers' monitoring focuses on "themes" (originally known as "areas of concern"), selected by the Committee of Ministers itself. Having regard to the CPT's mandate, one of the six themes[15] which have been considered since the procedure was introduced - police and security forces - is potentially of particular interest to the CPT.

However, as matters stand, little can be said with any certainty about the scope for complementarity between the Committee of Ministers' consideration of this theme, and the work of the CPT. This is because much of the information processed by the Secretary General's Monitoring Unit (the section of the Secretariat which services this activity) remains confidential.

One police and security forces monitoring document - a country-by-country overview based on information provided by member States[16] has been released, and studied closely by the CPT. Nonethless, it is conceivable that the other elements which make up the monitoring procedure (e.g. the comments of the Secretary General's Monitoring Unit on national contributions, the proceedings of debates on compliance held by the Ministers' Deputies, and the conclusions and follow-up action decided upon by the Committee of Ministers) could be of even greater relevance.

The question of declassification of Committee of Ministers documents relating to monitoring is currently on the agenda of the Ministers' Deputies. More particularly, at their 683rd meeting (held in camera, in November 1999), the Deputies agreed: "to resume consideration of this item during a regular meeting of the Ministers' Deputies at a later date under the Irish Chairmanship, at which a general stock-taking of the monitoring procedure would take place". The CPT will follow future developments in this area with interest.

Given that the participants in this conference include Mr Andrew Drzemczewski, who heads the Secretary General's Monitoring Unit, I hesitate to speculate about the issue of possible complementarity (behind closed doors) between the CPT's own findings-in-fact and the Committee of Ministers' monitoring procedure. However, I trust that, in preparing its comments on national contributions as regards police and security forces, the Monitoring Unit will have had regard to relevant recommendations in CPT reports which have been made public.

The Council of Europe Commissioner for Human Rights

In its Resolution (99) 50[17], the Committee of Ministers decided to institute the office of Council of Europe Commissioner for Human Rights ("the Commissioner"), with inter alia the following terms of reference:

"1. The Commissioner shall be a non-judicial institution to promote education in, awareness of and respect for human rights, as embodied in the human rights instruments of the Council of Europe.

2. The Commissioner shall respect the competence of, and perform functions other than those fulfilled by, the supervisory bodies set up under the European Convention of Human Rights or under other human rights instruments of the Council of Europe. The Commissioner shall not take up individual complaints."

This makes quite clear that the Commissioner is to avoid duplicating the functions of Council of Europe supervisory bodies, but to what extent might his activities be complementary to those of a body such as the CPT?

The Commissioner has already provided welcome public support for the CPT's activities, pledging - in the context of the CPT's 10th anniversary event in November 1999 - to support the Committee's activities with all the means at his disposal. However, it is far from clear that the office of the Commissioner currently has the human and budgetary means which he requires to carry out his task in a meaningful manner.

This has not prevented the Commissioner from launching his office in a distinctly proactive manner. As the Chairman of the Committee of Ministers records, within weeks of taking up his appointment:

" ¼ the new Commissioner for Human Rights, Mr Gil-Robles, visited the Northern Caucasus to make the fullest possible assessment of the situation on the ground; since that visit, on which Mr Gil-Robles reported to the Ministers' Deputies on 7 December, the Committee of Ministers has decided to review the proposal which will be forthcoming from the Secretary General in co-operation with the Russian Federation and the Commissioner for Human Rights for the future contribution of the Council of Europe towards restoration of the rule of law, respect for human rights and democracy in Chechnya".[18]

Taken at face value, this account by the Chairman of the Committee of Ministers - and, more particularly, his reference to "the fullest possible assessment of the situation on the ground" - would seem to suggest that the Commissioner may be allowed to develop a "monitoring" role.

In his January 2000 communication to the Parliamentary Assembly on the "state of the Council of Europe", the Secretary General of the Council of Europe also alluded to this possibility, in the following terms:

"The present Committee of Ministers' monitoring procedure clearly needs improvement. The current Chairman-in-office of the Committee of Ministers has proposed a major stock-taking of this procedure in March 2000. The opportunity should also be seized to determine whether, and if so how, the Council of Europe's new Human Rights Commissioner should become involved in the Council of Europe's monitoring mechanisms."

Any such development would be of more than academic interest to the CPT. To take just one concrete example: this week both the Commissioner and a CPT delegation have been engaged in visits to Moscow and the North Caucasian region at virtually the same time. Just how one might achieve an appropriate degree of "synergy" between the work of the CPT and that of any future "monitoring" Commissioner is one question which might perhaps be explored during the open discussion period which follows.

iii. implementation

"In addition to the "monitoring" par excellence undertaken in the proceedings before the European Court of Human Rights, an important task of the Council of Europe is to ensure that every member State respects the values and the important system of norms and standards developed by the Organisation over the years ¼"

(Final report of the Committee of Wise Persons to the Committee of Ministers, CM (98) 178, paragraph 69).

However effective a monitoring body may be - and regardless of the degree of synergy which it achieves with other such mechanisms - monitoring is not an end itself. If monitoring is to be credible, it must be linked to an effective means of ensuring that States implement measures to rectify the problems which monitoring identifies.

This is an important issue for a monitoring body such as the CPT, given that:

"The purpose of the Committee is not to condemn States, but, in a spirit of co-operation and through advice, to seek improvements, if necessary, in the protection of persons deprived of their liberty."[19]

In the majority of cases, member States react seriously to CPT recommendations, and engage in a dialogue with the Committee about the manner in which they may best be implemented. However, if a State fails to co-operate or refuses to improve a situation in the light of the Committee's recommendations, the only "sanction" which is available to the CPT is to make a "public statement" on the matter.[20] In other words, the Convention provides no formal means to ensure that the CPT's recommendations are implemented.

Could greater complementary between the CPT's non-judicial treaty-based approach and political activities within the Council of Europe enhance the degree to which CPT recommendations are implemented?

I intend to examine this question with reference to three distinct situations where the CPT's own powers are inadequate to secure implementation of its recommendations. Firstly, certain States entirely agree with the CPT's recommendations but, due to genuine economic difficulties, are unable to implement recommendations which have significant financial implications. Secondly, some States agree to publish the CPT's reports (and their own responses), but fail to implement certain of its recommendations. Thirdly, if a State fails to co-operate and/or refuses to improve a situation, the CPT may issue a public statement, but what happens next?

Implementation and economic hardship

As the CPT emphasised in its 8th General Report, "the prevailing economic circumstances in at least certain States visited by the CPT render it difficult to meet all of the Committee's requirements, notwithstanding the goodwill of the authorities concerned. The CPT is anxious to avoid this state of affairs leading to a hiatus in the process of combatting ill-treatment. In appropriate cases, positive measures intended to assist States to implement the Committee's recommendations could contribute to resolving this problem."[21]

Enhanced complementarity between the CPT's activities and existing Council of Europe programmes of assistance for developing and consolidating democratic security (ADACS) may be helpful in some areas, such as the training of law enforcement officials, prison officers and health-care staff in prisons and psychiatric hospitals.

However, it is clear that neither the CPT - nor the Council of Europe as a whole - has the budgetary means to assist in the implementation of CPT recommendations which have substantial financial implications - in particular those relating to a country's infrastructure (for example, wholesale renovation of the prison estate). Further, the CPT sometimes encounters situations calling for a humanitarian response (such as the provision of emergency food aid or medication to persons deprived of their liberty) which the Committee is not itself able to furnish (having neither the mandate nor the organisational capacity and resources to distribute aid).

To address these concerns, the CPT is seeking to develop means through which the question of the implementation of its recommendations might be submitted for consideration by other international organisations - including the European Union - which may have the requisite funds at their disposal. Having due regard to the principles of cooperation and confidentiality, means should also be found to ensure that relevant fund-holding organisations can be alerted to humanitarian situations without delay.

Clearly these matters lie beyond the scope of intra-institutional complementarity; however, it is to be hoped that the necessary political support could be found within the Council of Europe, should the CPT consider that inter-institutional initiatives are required.

Voluntary publication and non-implementation

The majority of States visited by the CPT have chosen to waive the rule of confidentiality laid down in the Convention, and have published the CPT's visit reports, often together with their own responses.[22]

In a growing number of cases, these are reports on follow-up visits, which set out the Committee's findings as regards the extent to which its earlier recommendations have been implemented. A finding that a State has not, as yet, implemented certain CPT recommendation is a not uncommon feature of such follow-up reports. In such situations, the CPT pursues its own dialogue with State concerned, with a view to securing the implementation of its recommendations. However, might greater use be made of this publicly-available information by other Council of Europe monitoring bodies?

To take just one example, were the Secretary General's Monitoring Unit to make a (confidential) adverse comment about a State's (public) failure to implement a CPT recommendation, how seriously would such a comment be taken by the Committee of Ministers in the context of its current monitoring procedure?

A public statement: then what?

The fact that the CPT has made only two public statements[23] during the past decade is a mark of the gravity with which the Committee regards this step. For a public statement is not only the result of a State's failure to co-operate and/or refusal to improve a situation in the light of the CPT's recommendations, it is also the clearest possible indication that the Committee's own powers have proved inadequate to secure the implementation of the recommendations in question.

If they so chose, bodies such as the Parliamentary Assembly and the Commissioner for Human Rights could assist, by bringing additional political pressure to bear upon the State concerned. However, the capacity of these bodies to influence the conduct of a "recalcitrant" member State is unlikely to exceed the CPT's own powers of persuasion.

In principle, it is the Committee of Ministers - representing the Governments of all Council of Europe member States - which is best placed to exert political leverage upon a State which fails to respect the values and the system of norms and standards developed by the Organisation. A number of statements have been made during the current Irish Presidency about the need to enhance the capacity of the Committee of Ministers in this respect. A review of political monitoring mechanisms has been announced, and the Irish Presidency Progamme indicates that "there can be neither exception nor compromise" on the thorny issue of the implementation of Court judgements[24].

However, is compliance with the CPT's recommendations regarded by the Committee of Ministers as being a commitment which is incumbent upon all member States which have ratified the Convention?

If it is not (and the muted reaction of the Committee of Ministers to the CPT's two previous public statements certainly leaves room for doubt), member States could be encouraged to consider it permissible to "go through the motions" of ratifying the Convention, and accepting CPT visits, without making the requisite efforts to implement the Committee's recommendations.

Were such a situation to arise, it would constitute a manifest lack of complementarity between the CPT's non-judicial treaty-based approach and the political work of the Committee of Ministers. The absence of complementarity in this critical domain could only serve to undermine the determination expressed by the Heads of State and Governments of the member States of the Council of Europe at their Second Summit to reinforce the means to prevent and combat torture and inhuman or degrading treatment or punishment.

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[1].On 27 April 1999, as part of a parcel of commitments undertaken on accession to the Organisation, the Council's 41st member State - Georgia - undertook to sign and ratify the Convention within one year. Georgia signed the Convention on 16 February 2000. Cf. Committee of Ministers Resolution (99) 4, Invitation to Georgia to become a Member of the Council Of Europe (Adopted by the Committee of Ministers on 24 March 1999 at the 665th meeting of the Ministers’ Deputies).

[2]. Cf. Article 10, paragraph 2 of the Convention.

[3]. Cf. for example, the judgements of the Court in the cases of Aydin v. Turkey and Aerts v. Belgium.

[4]. Cf. The judgement of the Court of 28 July 1999.

[5]. Cf. Paragraph 24 of the Explanatory Report on the European Convention for the Prevention of Torture.

[6]. In that case, which concerned four asylum seekers held in the transit zone at Paris-Orly Airport for 20 days, the Court stated that "The mere fact that it is possible for asylum seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction ("atteinte") on liberty ...." and held that "holding the applicants in the transit zone .... was equivalent in practice, in view of the restrictions suffered, to a deprivation of liberty".

[7]. Cf. Report of the Committee on Legal Affairs and Human Rights, Document 7784

[8]. Cf. Recommendation 1323 (1997), adopted by the Assembly on 21 April 1997.

[9]. Cf. Decision adopted under item 4.2 at the 656th meeting of the Ministers' Deputies.

[10]. Cf. CPT / Inf (99) 12.

[11]. Cf. Report of the Committee on Legal Affairs and Human Rights, Document 7784

[12]. Ibid. footnote 11.

[13]. Cf. Declaration on compliance with commitments accepted by member States of the Council of Europe, adopted by the Committee of Ministers on 10 November 1994 at its 95th Session.

[14]. Cf. Procedure for implementing the declaration of 10 November 1994 on compliance with commitments accepted by member States of the Council of Europe, adopted by the Committee of Ministers on 20 April 1995 at the 535th meeting of the Ministers' Deputies.

[15]. Namely, freedom of expression and information, functioning and protection of democratic institutions, functioning of the judicial system, local democracy, capital punishment and police and security forces.

[16]. Cf. CM/Monitor (99) 11 (Parts I, II and Addendum).

[17]. Adopted by the Committee of Ministers on 7 May 1999 at its 104th Session, Budapest.

[18]. Cf. Statutory report to the Parliamentary Assembly (January 2000), Written communication by the Chairman of the Committee of Ministers, Mr David Andrews, Minister for Foreign Affairs of Ireland. AS / Inf (2000) 2.

[19]. Cf. paragraph 20 of the Explanatory Report on the European Convention for the Prevention of Torture.

[20]. Cf. Article 10, paragraph 2, of the Convention.

[21]. Cf. paragraphs 22 to 24 of document CPT/Inf (98) 12.

[22]. To date, sixty-one CPT reports have been published in this way. All are available - in full text - on the CD-ROM included in the conference pack.

[23]. Also available in full text on the conference-pack CD-ROM.

[24]. Cf. the Irish Presidency Programme, in Magennis, S., (ed.), Ireland and the Council of Europe Today (Permanent Representation of Ireland to the Council of Europe, 1999).

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