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Ref.: CPT/Inf/C (93) 10 [EN]
In the 1st and 2nd General Reports on its activities (cf. CPT (91) 3, paragraphs 74 to 77, and CPT/Inf (92) 3, paragraph 15), the CPT drew attention to certain legal issues which had arisen concerning the interpretation of the European Convention for the prevention of torture and inhuman or degrading treatment or punishment. The issues in question related to the application of visa requirements to members of CPT visiting delegations, the giving of reasons when Article 14 (3) of the Convention is invoked (objections to an expert, or other person assisting the Committee, taking part in a visit), and the legal status of the Explanatory Report on the Convention.
At the suggestion of the CPT, the Committee of Ministers has decided to declassify the documents dealing with these matters.
The documents concerned are :
These documents are set out hereafter.
Strasbourg, 7 September 1990
Dear Secretary General,
Subject : The application of visa requirements to members of the European Committee for the prevention of torture and inhuman or degrading treatment or punishment (CPT) and experts assisting the CPT as regards entry into the country in which they exercise their functions.
As you may well know, some member States of the Council of Europe impose a visa requirement on persons of certain nationalities travelling to their territories. The CPT is about to carry out a visit to one such member State, and the authorities of this country have advanced that a visa requirement it applies to British and Irish nationals travelling to its territory is also applicable to the visiting delegation. In concrete terms, this means that for one member of the delegation, an expert accompanying it and a member of the Secretariat, entry into the country concerned has been subject to obtaining a visa.
This raises a very important question of interpretation of the European Convention for the prevention of torture and inhuman or degrading treatment or punishment.
Article 16 of the Convention provides that the CPT, its members and experts assisting the CPT "shall enjoy the privileges and immunities set out in the annex to (the) Convention". Among the privileges and immunities set out in the annex are to be found the following :
"2. .......
b. exemption from any restrictions on their freedom of movement : on exit from and return to their country of residence, and entry into and exit from the country in which they exercise their functions, and from alien registration in the country which they are visiting or through which they are passing in the exercise of their functions.".
The CPT unanimously takes the view that the terms "exemption from any restrictions" on "entry into ... the country in which they exercise their functions" clearly rule out the application of a visa requirement to any member of the CPT or expert assisting it. This view is based on three considerations :
1) Under both customary law and the Vienna Convention on the Law of Treaties (Article 31, paragraph 1), in the interpretation of international treaties a literal construction should be given pride of place ; in other words, treaty provisions should be interpreted according to the ordinary meaning of their terms. Now, it is indisputable that the literal meaning of the provision referred to above entails that no visa requirements can be imposed.
2) The CPT's view is also supported by a logical construction of the provision at issue. Visa requirements are normally imposed for one or more of the following reasons : a) to check on foreign immigration ; b) to check on the possible entry of persons suspected of having committed or being likely to commit a criminal offence ; c) to retaliate against individual countries that have imposed a visa requirement on nationals of the State requesting possession of a visa. It is self evident that none of these reasons can apply to CPT members or experts working for the Committee. Indeed, when they enter a country for a visit, they accomplish, for a limited period of time, the specific mission provided for in the Convention and therefore act in an international capacity ; their nationality does not and should not play any role whatsoever.
3) The view taken by the CPT about the interpretation of the Convention is also in keeping with the principle set out in the Vienna Convention on the Law of Treaties according to which a treaty is to be interpreted in the light of its object and purpose (Article 31, paragraph 1).
As indicated in its preamble, the object and purpose of the Convention is to strengthen the protection of persons deprived of their liberty against torture and inhuman or degrading treatment or punishment by non-judicial means of a preventive character "based on visits". The power of the CPT to carry out visits represents the very core of the Convention.
A number of situations can be envisaged in which the application of visa requirements to CPT members and experts could seriously hamper the exercise of the Committee's power to carry out a visit, and thereby undermine the effectiveness of the Convention as a whole.
I should like to add that, in the considered view of the CPT, it would be in accordance with the spirit of the Convention if members of the Secretariat and interpreters accompanying a CPT visiting delegation were also to be exempted from any visa requirements.
I would be most grateful if you could have the above matters raised before the Committee of Ministers at the earliest opportunity.
Yours faithfully
Antonio CASSESE
Strasbourg, 9 November 1990
Dear Secretary General,
On behalf of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), I wish to raise an important question relating to the interpretation and application of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, namely the legal status of the Explanatory Report on the Convention.
The CPT has found it necessary to comment upon this matter as a Party to the Convention recently called into question the importance to be attached to the observations in the Explanatory Report. In the context of the application of Article 14, paragraph 3, of the Convention, the Party in question argued :
a) that the Explanatory Report has no legally-binding authority , and
b) that even assuming the Report has some value as a supplementary means of interpretation, there is no need to resort to it for guidance if the meaning of the Convention provision to be interpreted is clear.
On the basis of these arguments, the Party concluded that despite what might be said in the Explanatory Report concerning Article 14, paragraph 3, of the Convention, there was no obligation for a Party to respond to a request from the CPT to be given the reasons when the Party invoked Article 14, paragraph 3, and declared that a person assisting the CPT may not be allowed to take part in a visit.
The CPT disagrees with this point of view and wishes to state its own opinion on both :
1) the general question of the legal status of the Explanatory Report, and
2) the specific question of the interpretation of Article 14, paragraph 3, of the Convention.
As is apparent from the various meeting reports of the two intergovernmental bodies that drafted the European Convention for the prevention of torture, i.e. the Steering Committee for Human Rights and the Committee of Experts for the extension of the rights embodied in the European Convention on Human Rights, the draftsmen decided to lay down in the Convention itself the general principles and rules governing the body to be established, namely the CPT, while setting out in detail in the Explanatory Report the manner in which the Convention's provisions were to be interpreted and applied. This compromise greatly facilitated the task of the draftsmen ; it proved much easier to work out broad Convention terms and place in the Explanatory Report observations about the manner in which those terms should be applied. Detailed treatment of these matters in the Convention itself would have proved quite laborious and have rendered the text of the Convention too cumbersome.
As a result of the adoption of this approach, the various provisions of the Convention and the relevant parts of the Explanatory Report were always conceived of as two parts of a whole and, indeed, were agreed upon jointly.
The report of the 21st meeting of the Steering Committee for Human Rights, at which the texts of the Convention and the Explanatory Report were adopted and submitted to the Committee of Ministers, provides two clear examples of the above-mentioned duality.
In paragraphs 11 and 12 of the report, a proposal by the German expert to add an additional sentence to Article 17, paragraph 2, of the then draft Convention, spelling out the respective functions of the CPT and the organs of the European Convention on Human Rights, was discussed. All agreed that any overlap between the functions of the CPT and those of the Court and Commission had to be avoided. However, the proposal of the German expert was not accepted since "... the majority thought this idea (i.e. avoidance of overlapping) was already clearly enough expressed in the Explanatory Report and that there was no need for a provision to this effect in the Convention itself, especially as such a detailed provision ... raised many substantive and drafting difficulties".
Later on, in paragraphs 32 and 33 of the same meeting report, several proposed amendments to the text of Article 8 of the Convention were considered. However, the proposals were not accepted "... since the relevant provisions of the Explanatory Report seemed satisfactory (see paragraphs 56, 62 and 64 of the Explanatory Report)".
In order to emphasise the special importance to be attached to the Explanatory Report when interpreting and applying the Convention, the Steering Committee for Human Rights inserted the following statement in the report of its 21st meeting :
"At the close of the discussion, the CDDH wished to draw the Committee of Ministers' attention to the great importance which should be attached to the Explanatory Report in relation to the interpretation of the Convention by the Parties and the new Committee".
It should be noted that in no other document or report relating to other Conventions or Protocols adopted within the framework of the Council of Europe can one find a similar statement concerning the special legal value to be attached to an Explanatory Report.
The significance of the Explanatory Report as regards the interpretation and application of the Convention is illustrated strikingly in relation to what is perhaps the most crucial of the Convention's provisions, namely paragraph 1 of Article 8. This provision is a model of simplicity, merely stating as follows :
1. The Committee shall notify the Government of the Party concerned of its intention to carry out a visit. After such notification, it may at any time visit any place referred to in Article 2".
Read in isolation, this provision places an enormous power in the hands of the CPT. A single requirement is provided for, namely that a Party must be informed of the CPT's intention to carry out a visit ; once that requirement has been met, the CPT can apparently do whatever it wants, whenever it wants and however it wants.
It is only in paragraphs 56 to 59 of the Explanatory Report that the conditions under which this provision should be applied are spelt out. These paragraphs are not designed to clarify obscure words of the Convention ; in fact, paragraph 1 of Article 8 could hardly be clearer. Rather, they set out the specific conditions under which that provision should be applied. To put it differently, they provide indispensable normative details for the application of Article 8, paragraph 1, of the Convention. I would add that when drafting its Rules of Procedure (see Rule 35) and developing its working methods in general, the CPT has paid scrupulous attention to the observations in paragraphs 56 to 59 of the Explanatory Report.
To sum up, the Explanatory Report is an indispensable element of the proper interpretation and application of the Convention. It is no accident that the phrase "This report does not constitute an instrument providing an authoritative interpretation of the text of the Convention ..." traditionally inserted in the preface to an explanatory report is not to be found in the Explanatory Report on the European Convention for the Prevention of Torture. This latter Convention can only be interpreted and applied in the light of the observations provided in the Explanatory Report, which spell out the attention of the draftsmen with regard to each specific provision of the Convention. Far from being merely a supplementary means of interpretation (cf. Article 32 of the Vienna Convention on the Law of Treaties), the Explanatory Report on the European Convention for the Prevention of Torture is to be considered as an agreement or instrument made in connection with the conclusion of the Convention (cf. Article 31, paragraph 2, of the Vienna Convention on the Law of Treaties).
Article 14, paragraph 3, of the Convention provides that "A Party may exceptionally declare that an expert or other person assisting the Committee may not be allowed to take part in a visit to a place within its jurisdiction".
The CPT takes the view that this provision involves an obligation for Parties to state the reasons for any refusal made under it, when requested to do so by the CPT or the relevant visiting delegation.
As pointed out above, each provision of the Convention has to be interpreted and applied in the light of the relevant passage of the Explanatory Report. As regards paragraph 3 of Article 14, paragraph 85 of the Report makes the following observation :
"When a States declares that a person may not take part in a visit, the Committee may wish to ask for the reasons, on the understanding that the enquiry and any response shall be confidential. Such an arrangement may be of assistance to the Committee in appointing other persons to assist it".
The CPT believes it cannot reasonably argued that although the CPT can ask for the reasons for a refusal under Article 14, paragraph 3, there is no obligation on the Party concerned to provide such reasons. The weakness of such an argument is exposed by the comment made in the second sentence of paragraph 85 of the Explanatory Report. A failure to give reasons can (and in fact did in the particular case which gave rise to this letter) hamper the CPT in its efforts to appoint other persons. In other words, there is a clear practical and functional ground for the view advocated by the Committee. Seen in this light, an obligation to provide reasons is to be considered as flowing from the general principle of co-operation set out in Article 3 of the Convention, which applies to all stages of the CPT's activities.
In any event, quite apart from anything said in the Explanatory Report, a literal and logical construction of Article 14, paragraph 3, alone leads to the conclusion that a Party must be prepared to disclose its reasons for invoking that provision. In this regard it should be noted that the said paragraph 3 only enables States "exceptionally" to refuse to allow an expert or other person assisting the CPT to take part in a visit.
The word "exceptionally", if it is to have any significance, must imply that a Party may use its right of refusal only under the most particular circumstances. And it is only via an obligation to provide reasons for a refusal that one can be assured that such circumstances exist. To deny that there is an obligation to give reasons would be tantamount to attributing to each Party an absolutely discretionary power as regards the exercise of the right of refusal under Article 14, paragraph 3, thereby rendering the qualification "exceptionally" a dead letter. Similarly, the giving of reasons is the only means of ensuring that a Party does not abuse its right of refusal, in contravention of the principle of co-operation laid down in Article 3 of the Convention.
I would be most grateful if, as with my letter to you of 7 September 1990 on the subject of visas, you were to have the above matters brought to the attention of the Committee of Ministers.
Yours faithfully,
Antonio CASSESE
1. The Committee of Ministers has been asked to interpret certain provisions of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, by the Chairman of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter referred to as the Torture Convention Committee). The Deputies agreed to ask their Rapporteur Group on Legal Co- operation to examine these questions with a view to reporting back to them.
The Rapporteur Group met on 14 March 1991 and arrived at the conclusions set out in this Report.
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2. As a first question, the Rapporteur Group examined whether the Committee of Ministers was empowered to interpret the treaties drawn up at the Council of Europe. To this end one has to distinguish between an "authoritative interpretation" binding on the Parties and a non-binding interpretation.
3. The Rapporteur Group unanimously agreed that the Committee of Ministers is not empowered to give an authoritative interpretation of a treaty drawn up at the Council of Europe.
a) Article 31.3 of the Vienna Convention on the Law of Treaties provides that, for the purpose of the interpretation of a treaty, there shall be taken into account, "together with the context: (a) any subsequent agreement between the Parties regarding the interpretation of the treaty or the application of its provisions".
The Vienna Convention simply codifies the law on the subject, as laid down, in particular, by the Permanent Court of International Justice: "the right to give an authoritative interpretation of a legal rule belongs solely to the person or body who has power to modify or suppress it" (1).
b) It is apparent from the foregoing that it is only for the Parties to the treaty to give the treaty an authoritative interpretation.
c) A treaty prepared at the Council of Europe is not a legal instrument of the Organisation: once it has been adopted by the Committee of Ministers and opened for signature, it becomes a legal instrument in its own right. As a collegiate organ of the Organisation, the Committee of Ministers would not therefore be empowered to give it an authoritative interpretation.
4. A majority of the Group was of the opinion that the Committee of Ministers could give an interpretation of the Convention which would not be binding on the Parties (2).
5. Whether the Committee of Ministers wishes to give such a non-binding interpretation is not a legal question and it is for the Committee of Ministers as a whole to decide on that.
a) The following arguments were advanced in favour of giving such an interpretation:
- an interpretation by the Committee of Ministers would certainly have a certain moral and political weight;
- a refusal by the Committee of Ministers to give such an interpretation might be regarded as unsatisfactory by the Torture Convention Committee.
b) The following arguments were advanced against giving a non-binding interpretation:
- a non-binding interpretation of the Convention is of no great value, no Contracting Party is bound by it;
- the practical problem arising will therefore not be solved by such an interpretation and that might be even less satisfactory for the Torture Convention Committee than not receiving an interpretation from the Committee of Ministers;
- the Torture Convention Committee can always ask for a meeting to be convened of the Contracting Parties to the Convention which would be empowered to give an authoritative interpretation.
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6. One of the arguments advanced by the Chairman of the Torture Convention Committee in favour of his interpretation of the treaty is the text of the explanatory report to the Convention.
7. The Rapporteur Group unanimously agreed that the explanatory report is of great value for the interpretation of the Convention but that it does not have the same value as the text of the Convention. The explanatory report therefore has to be taken into consideration when giving an opinion. However, as set out above, any such interpretation cannot be an authoritative and therefore binding interpretation, regardless of the weight of the arguments based on the explanatory report.
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8. The first provision of the Convention to be interpreted is Article 16 of the Convention together with paragraph 2b of the Annex providing that the members of the Torture Convention Committee and accompanying experts enjoy "exemption from any restrictions on their freedom of movement: on exit from and return to their country of residence, and entry into and exit from the country in which they exercise their functions, and from alien registration in the country which they are visiting or through which they are passing in the exercise of their functions."
9. The Torture Convention Committee takes the view that the terms "exemption from any restrictions" on "entry into ..... the country in which they exercise their functions" clearly rule out the application of a visa requirement to any member of the Torture Convention Committee or expert assisting it. The Rapporteur Group felt unable to agree to such a strict interpretation.
10. The purpose of this provision of the Convention clearly is to enable members of the Torture Convention Committee and assisting experts to visit the territory of all Contracting Parties and to do so rapidly. To exempt them from visa requirements is one way of achieving this and the Rapporteur Group noted that several Contracting Parties, taking into account their own legislative and administrative arrangements, have provided for such an exemption in their law and have felt this to be the appropriate way of meeting their commitments under Article 16 of the Convention. The Rapporteur Group was however of the opinion that other arrangements effectively enabling members of the Committee and assisting experts to visit rapidly the territory of a Contracting Party were also compatible with the Convention. In particular the possibility of granting multiple entry visas valid for a period of several years was mentioned. Such visas enable the Committee to carry out even "surprise" or "lightning" visits. The Rapporteur Group noted that national legislations foresee different methods of implementing similar privileges and immunities, with respect to other treaties. It furthermore noted that no practical difficulties had arisen and that visas requested had been granted the following day.
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11. The other question of interpretation of the Convention to be examined by the Rapporteur Group concerns Article 14, paragraph 3, of the Convention. According to this Article "a Party may exceptionally declare that an expert or other person assisting the Committee may not be allowed to take part in a visit to a place within its jurisdiction." The Torture Convention Committee maintains that any such refusal has to be motivated. Its argument is based, inter alia, on the relevant provision of the explanatory report.
12. The Rapporteur Group noted that paragraph 85 of the explanatory report is worded as follows:
"85. When a State declares that a person may not take part in a visit, the Committee may wish to ask for the reasons, on the understanding that the enquiry and any response shall be confidential. Such an arrangement may be of assistance to the Committee in appointing other persons to assist it."
It was argued that this wording does not imply a precise obligation to give reasons. It is only provided that "the Committee may wish to ask ..." and that "such an arrangement may be of assistance ...". On the other hand it was argued that Article 3 of the Convention, according to which "In the application of this Convention, the Committee and the competent national authorities of the Party concerned shall co-operate with each other", might require from the State concerned to give its reasons.
13. The Rapporteur Group noted that the Torture Convention Committee had to be enabled to appoint other persons replacing the persons to which entry had been refused and that hitherto the Torture Convention Committee had had no practical difficulties in doing so. In any case, the Rapporteur Group considered that the Torture Convention Committee could, if appropriate, underline in its request for the reasons of refusal that this explanation would be useful for the choice of another person.
1. P.C.I.J., Series B, No. 8, Opinion of 6 December 1923, Jaworzina case.2. According to Article 12 of the Convention, the European Committee for the prevention of torture and inhuman or degrading treatment or punishment submits every year a general report on its activities to the Committee of Ministers. The need for an interpretation by the Committee of Ministers might for example be felt in this context.
Mrs Irene LARSSON
Extraordinary and Plenipotentiary Ambassador
Chairman of the Ministers' Deputies
Strasbourg, 10 July 1991
Madam,
I have the honour to refer to your letter of 3 June 1991, by which you forwarded to me, at the request of the Committee of Ministers, the report prepared by the Ministers' Deputies Rapporteur Group on Legal Co-operation, concerning the issues raised in my letters of 7 September and 9 November 1990 to the Secretary General. Allow me at the outset to express the CPT's appreciation of the attention given by the Ministers' Deputies, and more particularly by their Rapporteur Group on Legal Co-operation, to this matter.
The CPT has noted the view of the Rapporteur Group that the Committee of Ministers is not empowered to give an authoritative interpretation of a treaty drawn up within the framework of the Council of Europe. The CPT was, of course, aware that under customary international law, as reaffirmed by the Vienna Convention on the Law of Treaties, only the Parties to a treaty are empowered to give such an authoritative interpretation. However, the CPT was of the opinion that constructions of the European Convention for the prevention of torture given by the Committee of Ministers would carry great weight: it is the organ that decided on the drafting of the Convention, examined and adopted the text prepared by its subordinate bodies and opened the Convention for signature by member States of the Council of Europe.
Despite being of the view that only the Parties to a treaty can provide an authoritative interpretation of the text, the Rapporteur Group was kind enough, in paragraphs 7 to 13 of its report, to examine the questions of interpretation of the Convention raised by the CPT as well as the related issue of the status of the explanatory report on the Convention. The Committee is very grateful to the Rapporteur Group for this. The CPT will, of course, take into account the views of the Rapporteur Group in its future work. However, it would like to take this opportunity to make a number of remarks in response to the Rapporteur Group's comments.
The CPT has noted with satisfaction the unanimous agreement within the Rapporteur Group that the explanatory report on the Convention is of great value for the interpretation of the Convention. As the Rapporteur Group correctly points out, the explanatory report "does not have the same value as the text of the Convention"; the CPT fully shares this opinion and never suggested anything to the contrary. The CPT's position was, and remains, that the observations in the explanatory report are part of the context in which the meaning of the terms used in the Convention is to be ascertained (cf Article 31, paragraphs 1 and 2, of the Vienna Convention on the Law of Treaties).
On the question of visas, the Rapporteur Group disagrees with the opinion of the CPT that visa requirements may not be applied to members of the CPT and experts assisting it. The CPT is somewhat surprised that despite having earlier in its report unanimously agreed that the explanatory report is of great value for the interpretation of the Convention, the Rapporteur Group makes no mention of the explanatory report when expressing its view on the question of visas. The CPT would point out that it is stated expressly in paragraph 61 of the explanatory report that visa requirements may not be invoked against members of a visiting team.
However, the Rapporteur Group does recognise that members of the CPT and experts assisting it must be in a position to visit rapidly the territory of a Contracting Party, and makes certain practical suggestions in this regard. In particular, the Rapporteur Group mentions the possibility of granting multiple entry visas valid for a period of several years. Although the CPT still believes that the terms of the Convention rule out the application of visa requirements to the above-mentioned persons, it welcomes the comments made by the Rapporteur Group, which are clearly inspired by the principle of co-operation set out in Article 3 of the Convention. Nevertheless, it should be noted that the granting of multiple entry visas may well not prevent difficulties from arising, in particular insofar as experts assisting the CPT are concerned ; such experts are appointed on an ad hoc basis for each visit.
As regards the question of interpretation raised concerning Article 14, paragraph 3, of the Convention, the wording of the Rapporteur Group's report suggests that there was a fair degree of sympathy for the CPT's view that a Party must state the reasons for any refusal by it to allow an expert or other person assisting the Committee to take part in a visit. However, the CPT would like, with respect, to rectify what is stated in paragraph 13 of the report, namely that hitherto the CPT had had no difficulties in appointing other persons to replace persons refused entry. To quote my letter of 9 November 1990 to the Secretary General, "A failure to give reasons can (and in fact did in the particular case which gave rise to this letter) hamper the CPT in its efforts to appoint other persons".
The CPT welcomes the suggestion by the Rapporteur Group that the Committee "could, if appropriate, underline in its request for the reasons of the refusal that this explanation would be useful for the choice of another person". The CPT will follow this suggestion in the future and trusts that Parties will respond accordingly.
More generally, the CPT is confident that through the full respect of the principle of co-operation set out in Article 3 of the Convention, it will be possible to resolve satisfactorily any difficulties that may arise in the future as regards the Convention's application.
Please accept, Madam, the assurance of my highest consideration.
Antonio CASSESE
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