¹ The origins of this article lie in the writer's Inaugural Lecture as Professor of Public International Law at the University of Bristol, delivered on 23 Nov 2000. As will be clear from the contents, it has been considerably updated but aims to retain the essential thrust of the lecture then delivered. It now covers developments to the end of Dec 2001.1 am very grateful to the Airey Neave Trust for their support of research into the CPT in the mid- 1990s and their current support of research into the UN Committee against Torture. This article is an outgrowth of this work. I am also very grateful for the support of the Society of Legal Scholars (formerly the SPTL), who generously funded a number of visits to Geneva.

² See Report of the Working Group on its Ninth Session, UN Doc E/CN.4/2001/67 and CHR Resolution 2001/44 of 23 Apr 2001.

³ A draft was tabled by Costa Rica in March 1980 in E/CN.4/1409. A new draft, which provided the basis for the current negotiations was submitted to the UN Commission in 1991. See E/CN.4/1991/66. The decision to establish the open-ended working group was taken in CHR Resolution 1992/43 of 3 Mar 1992.

⁴ See ETS No 126. The ECPT was opened for signature of 26 Nov 1987 and entered into force on 1 Feb 1989. For the background to the adoption of the CPT see Cassese, A, ‘A New Approach to Human Rights: The European Convention for the Prevention of Torture’, (1989) 83 AJIL 130CrossRefGoogle Scholar and Evans, M and Morgan, R, Preventing Torture: A Study of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (Oxford: Oxford University Press, 1998), ch 4.Google Scholar

⁵ At the time of writing Armenia and Azerbaijan, which joined the Council of Europe in Jan 2001, are the only member states who are yet to ratify the ECPT. Armenia signed the Convention on 11 May 2001 and Azerbaijan on 21 Dec 2001.

⁶ The CPT's 11th General Report records that as at 1 Sept 2001 it had drawn up 111 visit reports, and 74 of them had been published with the consent of the state. See CPT/Inf (2001) 16, para 13 and App 2.

⁷ At the outset of its work the CPT conceptualised the relationship in the following terms: ‘Unlike the Commission and the Court, the CPT is not a judicial body empowered to settle legal disputes concerning alleged violations of treaty obligations (ie to determine claims ex post facto). The CPT is first and foremost a mechanism designed to prevent ill-treatment from occurring, although it may also in special cases intervene after the event. Consequently, whereas the Commission's and Court's activities aim at “conflict solution” on the legal level, the CPT's activities aim at “conflict avoidance” on the practical level.’ See 1st General Report CPT/Inf (91) 3, para 2.

⁸ ECPT, Preamble.

⁹ For overviews of the work of the CPT see Evans, and Morgan, , ‘The European Convention for the Prevention of Torture: Operational Practice’, (1992) 41 ICLQ 590CrossRefGoogle Scholar and ‘The European Convention for the Prevention of Torture: 1992–1997’ (1997) 46 ICLQ 633Google Scholar and the essays by various contributors in Morgan, and Evans, (eds), Protecting Prisoners: The Standards of the CPT in Context (Oxford: Oxford University Press, 1999).Google Scholar

¹⁰ At the 9th session of the Working Group in Feb 2001 Mexico, with the support of the Group of Latin American and Caribbean states (GRULAC) tabled a proposal which placed great emphasis upon the role to the played by national mechanisms and this has had the effect of galvanising thinking across a broad spectrum of issues. This prompted the tabling of new and revised articles to be included within the original Costa Rica draft by Sweden on behalf of the EU. Both sets of proposals are included as Annexes to the 9th Report of the Working Group, E/CN.4/2001/67. At the 10th session in Jan 2001 the Chair presented her own draft and the matter is currently before the UN Commission on Human Rights

¹¹ See UNGA Res 39/46, adopted 10 Dec 1984. The Convention entered into force on 26 June 1987 and there are 127 states party at the time of writing. For the background to the Convention and its drafting see Burgers, J and Danelius, Ft, The United Nations Convention against Torture (Martinus Nijhoff, 1988)Google Scholar and for a recent exploration of the work of the CAT, see Ingelse, C, The UN Committee against Torture (Kluwer, 2001)Google Scholar.

¹² See UNCAT, Art 19. For a recent examination of practice of the CAT concerning reporting procedures see Bank, R, ‘Country-Oriented Procedures under the Convention against Torture: Towards a new dynamism’, in Alston, P and Crawford, J (eds), The Future of UN Human Rights Monitoring (Cambridge: Cambridge University Press, 2000)Google Scholar, ch 7. As at 18 May 2001 there were a total of 139 reports yet to be submitted to the Committee. See the Report of the Committee Against Torture (25th and 26th Sessions), A/56/44, para 23. For fuller details to 31 Mar 2001 see Recent Reporting History Under the Principal International Human Rights Instruments HRI/GEN/4/Rev 1. At the time of writing, according to the UN Website, 404 Reports have been submitted to the Committee and 136 Reports are outstanding.

¹³ UNCAT, Art 22. Forty-three states have made a declaration accepting the right of individuals to submit communications to the CAT at the time of writing. The most recently published Report of the Committee Against Torture records that as of May 2001 183 communications had been made, yielding 20 findings of violations, with 40 cases still pending. See A/56/44, para 200. See also Ingelse, above, ch 5.

¹⁴ UNCAT, Art 21. Forty-six states have currently made a Declaration under this Art, although no interstate communication has yet been made. Japan, UK, and the USA have made declarations under Art 21 but not Art 22. See also Ingelse, above, ch 7.

¹⁵ UNCAT, Art 20. Nine States have declared that they do not recognise the competence of the Committee under this article, as they are entitled to do at the time of ratification or accession. These are: Afghanistan, Belarus, China, Cuba, Israel, Kuwait, Morocco, Saudi Arabia, and the Ukraine. For an examination of this procedure see Bank, above, at 166–72; Ingelse, above, ch 6. A similar mechanism is now found in Articles 8–10 of the Optional Protocol to the Convention on the Elimination of Discrimination against Women, GA Res A/54/4, adopted 6 Oct 1999 and in force 22 Dec 2000. Of the 30 states party, only 2 (Bangladesh and Cuba) have made the declarations permitted by Art 10 which permit states to opt out of the procedure at the time of signature or ratification.

¹⁶ See General Comment No 1, Implementation of Art 3 of the Convention in the context of Art 22, adopted 21 Nov 1997, A/53/44, para 258 and annex IX. See also Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev 5. This contains all texts adopted up until 31 Mar 2001 and shows that the one Comment adopted by the CAT compares with 14 General Comments adopted by the Committee on Economic, Social, and Cultural Rights, 28 adopted by the Human Rights Committee; 27 adopted by the Committee on the Elimination of Racial Discrimination, and 24 adopted by the Committee on the Elimination of Discrimination against Women. It does, however, equal the record of the Committee on the Rights of the Child which has also adopted just one General Comment. Obviously, these bodies have been in existence for various periods of time and have very different workloads and pressures. But this cannot be the sole reason for these differentials.

¹⁷ See CAT/C/SR.435 (meeting of 17 May, 2000).

¹⁸ During the 24th session of the CAT in May 2000 the possibilities of drawing up two general comments were discussed and committee members designated to prepare background papers for subsequent consideration. These concerned (1) the definition of torture appearing in Art 1 of the Convention and the need for its incorporation into domestic legislation of the state parties and (2) Interim Measures requested by the Committee, exercising its competence under Art 22 of the Convention. See Ibid and GAOR A/55/44, para 21. As regards the second of these topics, a background paper was prepared by Committee member Mr Camara and a preliminary discussion took place at the 26th session in May 2001 (see CAT.C/SR.479/Add 1). Although some preparatory work has taken place, there does not appear to have been any further substantive consideration of either question at formal meetings of the Committee and so the process may fairly be described as being at an embryonic stage. Certainly, there is no mention of this work in its Report to the General Assembly for this session (A/56/44). Members of the CAT were present at an informal seminar on the definition of torture organised by the Association for the Prevention of Torture in Geneva in Nov 2001 (at which a version of this article was distributed and discussed). There does not appear to have been an occasion to discuss the prospects of drawing up a general comment on the definition of torture at the 27th session of the Committee which followed.

¹⁹ Because the particular focus of this article concerns the relevance of the lessons and experience of the European system for the CAT, the potential relevance of other bodies of experience—and in particular those flowing from the Inter-American Convention system and the work of the UN Human Rights Committee under the 1966 International Covenant on Civil and Political Rights—is not addressed. This should not be taken to imply that they are of secondary importance. For an authoritative presentation of the work of the Human Rights Committee, the UN Special Rapporture on Torture and the work of the Inter-American system pertinent to the questions addressed here see generally Rodley, N, The Treatment of Prisoners Under International Law (Oxford: Oxford University Press, 2nd edn, 1999)Google Scholar and in particular chs 3 and 9.

²⁰ For a more general consideration of the tensions between the various forms of torture prevention see Evans, , and Morgan, , ‘Torture: Prevention versus Punishment?’, in Scott, C (ed), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Oxford: Hart Publishing, 2001), ch 5.Google Scholar

²¹ Greek case, Report of the European Commission on Human Rights, 5 Nov 1969, 12 Yearbook of the European Convention on Human Rights 1 at 186.

²² Ireland v UK, Report of the European Commission of Human Rights, 25 Jan 1976, ECHR Ser B, No 23–1, 410.

²³ Ireland v UK, Judgment, 18 Jan 1978, ECHR Ser A, No 25 (2 EHRR 25), para 167.

²⁴ HCJ 5100/94 Public Committee against Torture in Israel et al. v The State of Israel and the General Security Service (GSS), Judgment of 6 Sept 1999 para 17 [nyr]. It was decided that all such use of physical force in the course of interrogation was beyond the powers of the interrogators and so could not be authorised. Nor could a defence of necessity to a criminal charge brought against an interrogator be accepted, save in certain exceptional circumstances. For a detailed examination of this judgment and its broader ramifications see A Reichman and T Kahana, ‘Israel and the Recognition of Torture: Domestic and International Aspects’, in Scott (ed), above, ch 24. See also the third period report of Israel to the CAT, which sets out the findings in the case and the Israeli response to it, including the Government's decision 'not to initiate legislation that would authorize the use of physical means in investigations’ (CAT/C/54/Add. 1, para 40).The judgment does not however cast any new light on the threshold between torture and inhuman and degrading treatment, the question of whether the practices in question being ‘torture’ as opposed to ‘inhuman or degrading’ treatment not being directly addressed (see Ibid, paras 6–7).

²⁵ Aksoy v Turkey, Judgment, 18 Dec 1996, RJD 1996-VI, 2260 (23 EHRR 553), para 63. These words are derived from the judgment of the Court in Ireland v UK, Judgment, 18 Jan 1978, ECHR Ser A, No 25 (2 EHRR 25), para 167 and have frequently been used and endorsed by the Court. For a recent example see Akkoc v Turkey, Judgment, 10 Oct 2000, para 115 [nyr].

²⁶ Selmouni v France [GC] Judgment, 28 July 1999, 29 EHRR 403, para 101.

²⁷ Costello Roberts v UK, Judgment, 25 Mar 1993, ECHR Ser A, No 247-C (19 EHRR 112). For a recent example of a claim which fell beneath the threshold altogether see Rehbock v Slovenia, Judgment, 28 Nov 2000, paras 79–81 [nyr] (failure to provide a detainee with a pain killer).

²⁸ Raninen v Finland, Judgment, 16 Dec 1997, RJD 1997-VIII, 2804 (26 EHRR 563), para 55.

²⁹ This is further supported by those cases in which discrimination, and particularly discrimination on the grounds of race, is seen as a form of degrading treatment. The origins of this approach are found in the East African Asians v UK, Commission Report, 14 Dec 1973, DR 78-A, 62 and Abdulaziz, Cabales and Balkandali v UK, Judgment, 28 May 1985, Ser A No 94 (7 EHRR 471) and more recently in Cyprus v Turkey [GC] Judgment, 10 May 2001, paras 302–11 [nyr] where the Court concluded that the overall conditions of living for the Greek Cypriot community in Karpas area of Northern Cyprus comprised discriminatory treatment of a degrading nature within the meaning of Art 3.

³⁰ Greek case, Report of the European Commission on Human Rights, 5 Nov 1969, 12 Yearbook of the European Convention on Human Rights 1 at 468–97.

³¹ For recent examples see Peers v Greece, Judgment, 19 Apr 2001, paras 63–74 [nyr] and Dougoz v Greece, Judgment 6 June 2001, paras 42–9 [nyr].

³² There now a long line of cases flowing from Soering v UK, Judgment, 7 July 1989, ECHR Ser A No 161 (11 EHRR 439) around which a complex jurisprudence has emerged. See generally Reid, K, A Practitioner's Guide to the European Convention on Human Rights (Sweet and Maxwell, 1998), 220–3, 268–75.Google Scholar

³³ See, eg, HLR v France, Judgment, 29 Apr 1997, RJD 1997-III, 758 (26 (EHRR) 29).

³⁴ See, eg, cases concerning the availability of forms of medical care, D v UK, Judgment, 2 May 1997, RJD 1997-III, 777 (24 EHRR 423) and Bensaid v UK, Judgment, 6 May 2001 [nyr].

³⁵ Ireland v UK, Judgment, 18 Jan 1978, ECHR Ser A, No 25 (2 EHRR 25), para 162.

³⁶ See W Peukert, ‘The European Convention for the Prevention of Torture and the Europan Convention on Human Rights’, in Morgan and Evans, Protecting Prisoners, above, ch 3 at 98.

³⁷ Keenan v UK, Judgment, 3 Apr 2001, para 112. The case concerns the death by suicide of a segregated prisoner with a known history of mental illness (and who was under a suicide surveillance regime at the time of his death). The Commission, by the narrowest of margins (10 to 9) had concluded that there was no violation of Art 3 on the facts because of the lack of evidence of any suffering caused by the relevant failings of the prison service and the prolongation of the period of segregation (Commission Report, 16 Sept 1999, para 91). Diminishing the significance of the suffering consequential to the actions of the authorities paved the way for the finding by the Court (and foreshadowed in the dissenting opinion of Mrs Thune to the Commission's Report).

³⁸ For examples see the manner in which CPT Reports have been discussed by the Court in Aerts v Belgium, Judgment, 30 July 1998, RJD 1998-V, 1939 (29 EHRR 50); Magee v UK, Judgment, 6 June 2000 [nyr]; Akkoc v Turkey, Judgment, 10 Oct 2000 [nyr]; Tanli v Turkey, Judgment, 10 Apr 2001[ nyr]; Peers v Greece, Judgment, 19 Apr 2001 [nyr]; Dougoz v Greece, Judgment 6 June 2001 [nyr].

³⁹ For a detailed examination of the CPT's approach to these terms see Morgan, and Evans, , Combatting Torture in Europe: The Work and Standards of the CPT (Council of Europe Press, 2001), ch 3.Google Scholar

⁴⁰ It might be noted in passing that this is seemingly the view of the UN Commission on Human Rights which in its most recent resolution on torture, CHR Resolution 2001/62, adopted 25 Apr 2001, ‘reminds’ states that incommunicado detention could ‘facilitate’ torture and ‘itself constitute a form of cruel, inhuman or degrading treatment’ (para 10). It was not described as being potentially torture itself–unlike, for example, corporal punishment in para 5. A fortiori, other species of isolation would seem to fall outside the range of torture, although the same resolution seems to acknowledge that forms of ‘intimidation’ could amount to torture (para 1).

⁴¹ UNCAT, Arts 4, 5, and 7.

⁴² UNCAT, Art 16. States undertake to prevent such acts but it is only the obligations found in Arts 10 (education), 11 (review of interrogation rules and other arrangements for persons in custody), 12 (the conducting of prompt and impartial investigations) and 13 (securing the victim's right submit a complaint to competent authorities for investigation) that are directly applicable to forms of treatment other than torture.

⁴³ UNCAT, Art 14.

⁴⁴ UNCAT, Art 15.

⁴⁵ See n 42 above.

⁴⁶ This, of course, assumed a great importance in House of Lords in the Pinochet case. In its first decision, two of the judgments stressed the idea that acts of torture could not be ‘official acts’ whilst in the second substantive decision it was seeming vital to the reasoning that they were.

⁴⁷ See J Burgers and H Danelius, Handbook on the Convention against Torture and other Cruel and, Inhuman or Degrading Treatment of Punishment, above 1 and 131. This point was stressed by a number of judgments in Pinochet No 3. See, eg, R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (Amnesty International and other intervening) No 3 [1999] 2 All ER 97 at 109 (Lord Browne-Wilkinson), 150 (Lord Hope), 163–4 (Lord Hutton) and 177–8 (Lord Millet).

⁴⁸ This can be traced through the jurisprudence of the war crimes tribunals. In Prosecutor v Akayesu, Judgment, Case ICTR 96–4-T, 2 Sept 1998, para 593 the UNCAT definition was regarded as providing the relevant definition for the purposes of interpreting the Statute of the Court and this was endorsed by Trial Chambers of the ICTY in Prosecutor v Delalic, Case No IT-96–21-T, 16Nov 1998, para 459 and Prosecutor v Furundzija, Case No. IT-95–17/1, 10 Dec 1998, at para 160. However, that latter judgment also went on to say that, though of general application, in the context of armed conflict there were a number of additional definitional elements (para 162) and the logic of this approach was taken up in the Trial Chamber judgment in the case of Prosecutor v Kunarac, Kovac and Vukovic, Case No IT-96–23/1-T, 22 Feb 2001, para 482 in which it was concluded that ‘the definition of torture contained in the torture convention cannot be regarded as the definition of torture under customary international law which is binding regard-less of the context in which it is applied’. This has now been endorsed by the Trial Chamber judgment in the case of Prosecutor v Kvocka, Kos, Radic, Zigic and Prcac, Case No IT-98–30/1-T, 2 Nov 2001, paras 138–9, where it was decided that ‘the state actor requirement imposed by International Human Rights law is inconsistent with the application of individual criminal responsibility for international crimes found in international humanitarian law and international criminal law’. For an appraisal–made before the Kvocka judgment and which concludes that the UNCAT definition remains reliable as far as the conduct prohibited is concerned–see Cassese, A, International Law (Oxford: Oxford University Press, 2001), 254–6Google Scholar. It should also be noted that the Elements of Crime adopted by the Preparatory Commission for the International Criminal Court are also not necessarily ad idem with the UNCAT approach. See Kittichchaisaree, K, International Criminal Law (Oxford: Oxford University Press, 2001), 110–12 and 143–7.Google Scholar

⁴⁹ Selmouni v France [GC] Judgment, 28 July 1999, 29 EHRR 403, paras 97 and 100, where the European Court of Human Rights says ‘it remains to establish in the instant case whether the “pain or suffering” inflicted on Mr Selmouni can be defined as “severe” with the meaning of Article 1 of the UN Convention’.

⁵⁰ Ilhan v Turkey [GC] Judgment of 27 June 2000, para 85–88 [nyr]; Salman v Turkey [GC] Judgment of 27 June 2000, paras 114–16 [nyr]. For a more recent endorsement of the UNCAT definition see Akkoc v Turkey, Judgment, 10 Oct 2000, para 115 [nyr]. The purposive element is also implicitly endorsed in the recent case of Al-Adsani v UK [GC] Judgment, 21 Nov 2001, para 58.

⁵¹ Egmez v Cyprus, Judgment, 21 Dec 2000, para 78 [nyr]; Denizci v Cyprus, Judgment of 21 May 2001, paras 384–6 [nyr]. In both cases the Court also noted the lack of evidence of long-term consequences flowing from the ill-treatment.

⁵² The Greek case had contained some hints that justifications for forms of ill-treatment might be relevant to its findings but this was recanted in Ireland v UK and it has been quite clear since then that there can be no justification for ill-treatment. See, eg, Aksoy v Turkey, Judgment, 18 Dec 1996, RJD 1996-VI, 2260 (23 EHRR 553) and Chahal v UK, Judgment, 15 Nov 1996, RJD 1996-V, 1831(23 EHRR 413). For the approaches to justification and purpose see Rodley, The Treatment of Prisoners under International Law, above, 78–85.

⁵³ See, eg, A v UK, Judgment, 23 Sept 1998, RJD 1998-VI, 2692 (27 EHRR 611), para 22; Assenov v Bulgaria, Judgment, 28 Oct 1998, RJD 1998-VIII, 3264 (28 EHRR 652), para 95; Kudla v Poland [GC] Judgment, 26 Oct 2000, para 97 [nyr].

⁵⁴ Mahmut Kaya v Turkey, Judgment, 28 Mar 2000, paras 115–16 [nyr]. The Court drew on the reasoning in Osman v UK [GC] Judgment 28 Oct 1998, RJD 1998-VIII, 3124 ((29 EHRR 245), paras 115–16, although that concerned Art 2 rather than Art 3 of the Convention.

⁵⁵ Z v UK, Judgment, 10 May 2001, para 73 [nyr].

⁵⁶ Al-Adsani v UK [GC] Judgement, 21 Nov 2001, para 38 confirms the existence of a positive obligation upon states, flowing from Arts 1 and 3, to take measures ‘designed to prevent and provide redress for torture and other forms of ill-treatment’. Given the facts of the case it was not necessary to directly address the prevention of ill-treatment by non-state actors.

⁵⁷ See McCann v UK, Judgment, 27 Sept 1995, ECHR Ser A No 324 (25 EHRR 97), para 161 (as regards state actors) and Yasa v Turkey, Judgement, 2 Sept 1998, RJD 1998-VI, 2492 (28 EHRR 408), para 100 (as regards non-state actors). These are now drawn together in Cyprus v Turkey [GC] Judgment, 10 May 2001, para 131 [nyr] (where it is also made clear that a breach can arise by a failure to respond to an ‘arguable claim that an individual, who was last seen in the custody of agents of the State, subsequently disappeared in a context which was life-threatening’ (para 132).

⁵⁸ Arguably, there is really no need at all to find a state in breach of a ‘procedural’ obligation under Art 3 since in all such cases there should also be a breach of Art 13 of the Convention which concerns the obligation to provide an effective remedy.

⁵⁹ Ilhan v Turkey [GC] Judgment of 27 June 2000, para 92 [nyr].

⁶⁰ This approach should be kept within bounds. It origins lie in claims made on behalf of ‘disappeared’ persons and in this context it makes excellent sense. A state should not be able to hide behind unacknowledged detention or the activities of irregular groups with which it tacitly connives. If involvement or acquiescence cannot be shown, it might nevertheless be possible to demonstrate a failure to respond to the allegation. However, it should certainly not be used to upset the well-established principle that it is for the state to disprove its responsibility for injuries demonstrably sustained whilst in the custody of the state. In such cases, the involvement of the state is clear. Unfortunately the Court has recently started to find breaches of the ‘procedural obligation’ to investigate in cases where injuries have been sustained in custody but the cause of injury is in doubt, such as Labita v Italy [GC], Judgment, 6 Apr 2000, paras 125–9 [nyr] and Sevtap Veznedaroglu v Turkey, Judgment, 11 Apr 2000, paras 30–5 [nyr]. This is regrettable and unnecessary backtracking.

⁶¹ Kurt v Turkey, Judgment, 25 May 1998, RJD 1998-III, 1152 (27 EHRR 373).

⁶² Ibid, para 133.

⁶³ Ibid, para 134.

⁶⁴ Cakici v Turkey [GC] Judgment, 8 July 1999, 31 EHRR 133, para 98.

⁶⁵ Ibid.

⁶⁶ Other cases exploring the application of this principle include Timutas v Turkey, Judgment, 13 June 2000 [nyr]; Tas v Turkey, Judgment, 14 Nov 2000 [nyr]; Cicek v Turkey, Judgment, 27 Feb 2001 [nyr]; Cyprus v Turkey [GC] Judgment, 10 May 2001 [nyr]; Akdeniz v Turkey, Judgment, 31 May 2001.

⁶⁷ Tanli v Turkey, Judgment, 10 Apr 2001, para 159 [nyr]. It may be that the real scope of the principle is restricted to the anguish caused by the refusal to pursue the question of the where-abouts of a person, rather than the manner in which they have been treated whilst in detention by persons unknown. However, it is difficult to see why it is less distressing to know that the authorities have remained inactive in the face of claims that your son or daughter has been tortured in an acknowledged period of official custody than held–and potentially torture and/or killed–in a period of unacknowledged detention by parties unknown.

⁶⁸ Greek case, Report of the European Commission on Human Rights, 5 Nov 1969, 12 Yearbook of the European Convention on Human Rights 1 at 186.