24 May 2012

The Committee against Torture this morning considered the issue of follow-up to concluding observations and individual communications, hearing oral presentations by Committee members Felice Gaer, Rapporteur on follow-up to concluding observations, and Fernando Mariño Menendez, Rapporteur on follow-up to individual communications.

Ms. Gaer, presenting her report on follow-up to concluding observations, said that since the Committee began the follow-up procedure in 2003 and by the end of the current session, a total of 126 countries would have been reviewed. Follow-up recommendations must identify concerns and specific acts of torture which may occur in the future, and be serious, protective and be able to be accomplished within one year. States must provide information within that same 12 month period. Ms. Gaer presented a new double-ranking/duel-assessment system, alternative to that used by the Human Rights Committee, to rate the quality of information provided by countries and said she was heartened to note that the new duel-assessment system more accurately reflected a State’s performance.

Presenting an update on follow-up to individual communications, Committee Expert Fernando Mariño Menendez, the Rapporteur on the topic, said approximately a third of States parties to the Convention accepted the procedure. Today, virtually all of the human rights treaty bodies had individual complaints mechanisms and such mechanisms were generally accepted – there had been real progress in the legal consciousness of States to accept individual communications. Around 100 cases of individual communications were still pending. The Rapporteur pondered whether the time had come for a general stocktaking on the important achievements made so far, to what extent States had demonstrate compliance, and the number of cases closed.

In the ensuing discussion, Committee members commented that for some States the same topics kept recurring and asked if they could analyse the real impact follow-up had on countries. Challenges relating to the Committee’s competence were discussed, such as its authority to discuss issues relating to women and children, and a query was raised as to whether follow-up should be shared with non-governmental organizations and national human rights institutions specific to the country in question, as that could help ensure compliance. Complications around visits to countries to assess individual cases were also considered.

The Committee’s next public meeting will be at 10 a.m. on Friday, 1 June, when it will issue its concluding observations and recommendations on the country reports considered this session, adopt its annual report to the General Assembly, and agree on its programme of work for future sessions. At 6 p.m. on the same day the Committee will officially close the session.

Discussion

FELICE GAER, Vice Chairperson of the Committee and Rapporteur on follow-up to concluding observations, introduced the regular sessional follow-up report which she said was, as with States parties, in constant review. Follow-up recommendations to reporting observations (article 19 of the Convention) must identify concerns and specific acts of torture which may occur in the future, and be serious, protective and be able to be accomplished within one year. States must provide information within that same 12 month period. At the end of the last session 117 countries had been reviewed under follow-up procedure, at the end of the current session the figure would be 126. Of those countries 99 had been reviewed once and 27 reviewed twice, which accounted for a slight adjustment for the case of Syria, which had not been determined to have been reviewed until the end of the session.

Since the Committee’s last session in November follow-up replies had been received from six countries of which three were initial replies and three were replies to requests for further information. Since May 2011, the period covered by today’s report, there had been ten submissions by States. By and large, as seen in the past, a large number of States did not reply within the one year period, but did reply after a reminder: 75 per cent of countries submitted information within 14 months. It was also seen that States submitted information but did not necessarily carry out the recommendations. Ms. Gaer presented a new double-ranking/duel-assessment system, alternative to that used by the Human Rights Committee, to rate the quality of information provided by countries. The system did not refer to specific countries by name but indicated the region they were from, in order to evaluate the geographical balance. Ms. Gaer was heartened to note that the new duel-assessment system more accurately reflected a State’s performance.

In the ensuing discussion an Expert commented that for some States the same topics kept recurring. It was a real problem which related to the effectiveness of the concluding observations and States’ feedback and reaction to them. The Expert asked about follow-up to follow-up, in other words, what real impact the Committee had on countries. The Committee had statistics and analysis but could not make them public, as otherwise States would query why one region may be more diligent than another. The Committee needed to gain a clearer picture of what happened in practice.

Challenges relating to the Committee’s competence had been seen. For example, there had been challenges by States parties to the Committee’s quasi-judicial powers or its authority to discuss issues relating to women and children. That related to how the Committee’s concluding observations were seen by Member States. An Expert queried whether follow-up should be shared with non-governmental organizations specific to the country in question and also with the relevant national human rights institutions, as that could help ensure compliance. An example was the special report on Syria, which was related to the recommendations to the State’s periodic report. What about States parties who had never submitted any response to follow-up, what measures should be taken for those States that simply had never replied?

FERNANDO MARINO MENEDEZ, Rapporteur on follow-up to individual communications, discussed article 22 of the Convention, on individual communications, which was a semi-contentious, optional procedure. About a third of States parties to the Convention accepted the procedure, which was a State’s prerogative. Today, virtually all of the human rights treaty bodies had individual complaints mechanisms, either through the text of the Convention or through an Optional Protocol, and the idea of a mechanism was generally accepted – there had been real progress in the legal consciousness of States to accept individual communications.

Around 100 cases of individual communications were still pending, one of which dated back to 2003 while the rest dated to around 2007. The most common reasons for cases to be pending were either a lack of response from a State party, and also there were some thick files in various languages which were difficult to translate. The greatest number of individual complaints came from Switzerland which had 37 complaints still pending. There were 13 from Canada, nine from Sweden, eight from Denmark, seven from Australia and six from Kazakhstan. To demonstrate a rough geographical split there were three cases pending from African countries (Burundi, Algeria and Morocco), seven from Western Europe, two from Eastern Europe and two from South America.

Mr. Marino Menedez pondered whether the time had come for a general stocktaking on the important achievements made so far, to what extent States had demonstrated compliance, and the number of cases closed – which was a very important statistic. He proposed that the Committee hold a plenary discussion about whether States parties could provide more information to the Committee than at present.

CLAUDIO GROSSMAN, Committee Chairperson, thanked the Rapporteurs for their presentations, but said that as Committee members had had little time to review the reports it was difficult to comment fully on them. He hoped that in future the reports would be provided further in advance. On the subject of individual complaints, he noted that approximately 90 per cent of cases involved alleged violations of Article 3 of the Convention. However, with almost universal acceptance of the complaints mechanisms from Latin American countries the Committee could start to see different types of violations emerging. Another important issue was the matter of reparations. Were reparations and rehabilitations followed-up? What was the Committee’s responsibility in situations where a person was returned to a country that had not violated Article 3, but who was then tortured in violation of Article 3. Those issues must be debated as they were important to the Committee’s legitimacy. The matter of the normative value of the Committee’s decisions must also be discussed – for example one State, Canada, said it did not give normative value to the decisions of the Committee, which then became merely friendly advice. That was not in accordance with the Convention or Article 22. Interim measures were not mentioned in the Convention, but the Committee believed they merited compliance.

Continuing the discussion, an Expert commented on the proposal for a general stocktaking of individual complaints, and said the Committee should also discuss constructive criticism provided to it by States parties, which was always refreshing, welcome and helpful. The Experts discussed which Committee member should be responsible for visiting case subjects in countries around the world, and how to handle monitoring proposals. A one-time visit was often inadequate, especially if the individual had not been trained and if the visits were not prompt and often. Another issue was who paid for visits. A potential visit to Russia to assess an individual case was discussed by Committee members, some of whom found it problematic.

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