Committee against Torture considers follow-up to communications and concluding observations

27 May 2011

The Committee against Torture this morning considered the issue of follow-up to concluding observations and recommendations and individual communications, hearing presentations by Committee members on each topic.

Presenting the report on follow-up to conclusions and recommendations, Committee Expert Felice Gaer, rapporteur on this topic, said that in 2003, prompted by a desire to ensure practical and clear cut results, the Committee established a procedure to follow-up to concluding observations. This procedure sought to enhance a State party’s ability to prevent acts of torture and to come into full compliance with the Convention. The goal was to ensure that recommendations were serious, protective and could be accomplished within one year. States parties were required to send an update to the Committee within a year on measures they had taken to implement the recommendations. All relevant materials were posted on the Committee’s website, including materials from non-governmental organizations, responses from governments and communications from rapporteurs.

Ms. Gaer went on to say that there had been recurring concerns about follow-up replies including the challenge of ensuring prison visits by independent entities and the like. She was pleased to report two significant developments in the last year. The first was the interest of the Inter-Committee Meeting in these follow-up procedures, including the convening of two Inter-Committee Meetings that dealt with follow-up procedures and a meeting of a subgroup of the Inter-Committee Meeting that focused exclusively on follow-up and proposed recommendations. The good news was that under the follow-up procedure beginning with the 30th session through the 45th session there had been 101 States reviewed by the Committee. Of the 101 countries reviewed, 87 were follow-up reports and 66 of those 87 States sent follow-up replies which represented a reply rate of almost 76 per cent, an extraordinarily high response rate. However, there were 19 States that never sent any follow-up response at all. Ms. Gaer had analyzed the 19 States that never replied and she was sorry to say that most of them came from two world regions and she would look into the question of whether these were non-reporting States or regularly reporting States.

In terms of the number of recommendations given in the concluding observations, there were concerns about this because often times each concern raised several concrete recommendations to remedy the concern. So the question had been raised at the Inter-Committee Meeting in January 2011 about whether this was increasing the recommendations or not. One of the recommendations that came out of that meeting was that Committees should implement a categorization system for assessment of follow-up, using the system developed by the Human Rights Committee as an example. Ms. Gaer said that she had made an assessment of country responses using this method and it showed that many responses did not fit neatly into categories so it was hard to assign a score to countries because they provided varying ranges of follow-up information and had varying levels of implementation of the recommendations. Ms. Gaer’s conclusion was that a categorization system would be helpful, but the system used by the Human Rights Committee would have to be modified because it did not fully reflect the range of categories needed for the Committee against Torture. The Committee against Torture needed to reflect not only information provided by countries in their follow-up replies, but also what had been done to actually implement the recommendations. The categorization would need more work and they would need to be more disciplined in their recommendations if they wanted the follow-up procedure to be as effective as possible.

In the ensuing discussion, Committee members noted that the work done by Ms. Gaer was very important in helping States fully implement the recommendations of the Committee which ultimately served to better implement the provisions of the Convention. These types of processes could help establish a real course of action in the reporting procedure and this analysis of the follow-up of the actions taken by States could form a real process of implementation. A speaker asked for more clarification on how Ms. Gaer came up with the regional groups that she had used for the categorization of response rates. Another point they should keep in mind in the future was that they should really choose four issues that were implementable within one year. Ms. Gaer’s work showed how important this follow-up procedure was to determining how effective their work was and the need to be more specific about the follow-up information they asked for. A Committee member suggested that in categorizing these responses they could use time as one criterion because it mattered whether States replied in a timely manner or after one or two reminders, in addition to the quality of the information they provided. They could also look at the meta-perspective, which was whether States felt that the recommendations made were in the competence of the Committee because some States replied that they felt the recommendations were outside the competence of the Committee. Another Committee Expert said that they felt categorization would be too difficult and even if they tried to do it, it should be done by the entire Committee, not just the rapporteur on this topic. Speakers from non-governmental organizations added that the recommendations should include concrete guidelines that were coherent and similar between Committees and they should think about going above and beyond reminder letters to States and meeting with delegations in Geneva.

Presenting the report on follow-up to individual communications, Committee Expert Fernando Mariño Menendez said the heart of the system for implementing human rights was the report system and the follow-up procedure. Individual complaints were taking an increasingly important place in the whole of the system. The Inter-Committee working party was already dealing with the harmonization of the individual complaints procedure between Committees. There were 113 cases pending and this was why the Committee had been granted another week for its sessions for the next few years. The countries that were most approached were those that were more open and had more requests for asylum and therefore they were most open to complaints. Sweden, Switzerland and Canada had a more generous asylum policy so they had the most complaints lodged against them.

States were asked to give information within a period of 6 months about measures it was going to adopt to fulfil the Committee’s recommendations. After 6 months the Committee began a dialogue with the State about measures taken and the implementation of decisions. There was written dialogue as well as dialogue with delegations from States parties here in Geneva. Turning to provisional measures, the rapporteur said these were important in light of article 3 as well. Once substantive decisions were taken by States, implementation was higher. Some results had been obtained since the analysis of follow-up had been started 5 years ago. There was a case that had been decided on by the Committee about an Egyptian that had been returned to Egypt by Sweden in connection with terrorism charges. The Swedish government had adopted a whole series of follow-up measures in good faith. Then there was some information from 13 May 2011 sent by the Ministry of Foreign Affairs in which the State referred to follow-up activities of the government regarding this individual, including 63 visits that had been made to the prison where this person was housed. They had done everything they could and the government was asking the Committee to declare the case closed. Compensation had been given to the person, but it was impossible to give him permission to return to Sweden once he finished his prison term and he could not serve out his term in Sweden. The Committee had urged that the dialogue continue and urged that the dialogue between the entity’s continued.

Another case was that of the ex-dictator of Chad who was in Senegal. The case had not finished going through the tribunals of Senegal and there had been intervention from the African Union. The tribunal did not have enough money and everything had been incredibly delayed. The dictator could not be judged in an internal court in Senegal and a special international tribunal needed to be created and this decision complicated everything. The Committee had taken a trip to Senegal. Belgium had asked the State party to not let the dictator leave Senegal until his case was judged. One of his victims had already died as the case had taken a very long time. Two new things that had come up was the return of a Russian citizen to Russia who was protected by cautionary measures and a case related to Tunisia. This was a case of death under torture re-examined after an exhumation of the body and the Tunisian government did this, but the family members of the victim were not satisfied. Regarding these cases, the comma should put into place precautionary measures. They could express their opinions at future meetings on links with internal organizations. There had to be an internal guarantee that the decisions of the Committee would be implemented; they should not just be seen as recommendations.

In the ensuing discussion, Committee members thanked Mr. Menendez for his work on behalf of the Committee and the attempt to try to follow-up on the conclusions and recommendations with regards to these various decisions. A Committee member asked about recommendations that had been made by the Inter-Committee working group and how implementation of those recommendations was going. The Committee member also asked whether in the case of the ex-dictator of Chad it was an issue of just passing the buck because no one seemed to be taking responsibility for this trial. The Committee needed to discuss what was done when there was non-compliance or rejection of Committee decisions by State parties.

Another Committee member said the importance of follow-up on article 22 could not be exaggerated. There were different types of supervision and the impact was also a function of those types of supervision. The weakest form of supervision was bilateral, when one country violated the law and another country complained. It all depended on the power of each country. Countries reacted on economic and political considerations. Collective political supervision was the next strongest which included the Universal Periodic Review and the General Assembly, but they also responded to political considerations. They tried to mitigate these political considerations, but this was the world in which they lived and the reality. The third type of supervision was the reporting system done by independent experts, while the strongest was the petition system because one had semi-judicial systems to establish the truth and countries had voluntarily submitted themselves to comply with the decisions and there was a name and a person attached to the complaint. This was why the complaints procedure was so important and they hoped to see a situation in which every country accepted article 22 on individual communications. Another important issue for article 22 was the question of resources. The allocation of Secretariat assistance for the purpose of follow-up was important because you needed someone who could do statistical analysis on rate of compliance and also translation assistance. This work required resources. There was no system of follow-up that allowed them to assess whether the decisions they took were really sound. For example, if they decided that a person was not in danger of being tortured if they were sent back to a certain country, how did they follow-up to see if they made the right decision? The system of provisionary and cautionary measures was also important. This system related to concrete human beings with an obligation by States for compliance. There was also a need for compliance because they were not the only body that dealt with inhumane treatment.

A speaker from a non-governmental organization said that the situation in Tunisia was a particular case as the country had undergone a very specific transformation in the last few months and this was a key moment for the Committee and it should position itself very strongly in asking Tunisia to implement decisions that had been made in the past.

Ivo Petrov from the Office of the High Commissioner for Human Rights secretariat said that they worked with all the treaty bodies to address individual communications and they were trying to figure out how to improve the process for all the Rapporteurs and the Committees. He did not think it was a question of human resources in the petitions committee.

In concluding remarks, Committee Chairperson Claudio Grossman said that he felt there was an issue of resources in terms of follow-up under article 22. They needed to see compliance with Committee decisions and they needed to determine whether States were in compliance, non-compliance or partial compliance in order to better help States act in accordance with the Convention. They needed proper follow-up in order to have statistics on compliance, thereby strengthening the Convention. All this information could be analyzed if it was gathered and to do this well there needed to be an allocation of resources.

When the Committee next reconvenes in public, on Wednesday, 1 June at 3 p.m., it will discuss its programme of work for future sessions and officially close the forty-sixth session of the Committee.

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For use of the information media; not an official record