APT Statement No. 1 to Working Session No. 7

OSCE Human Dimension Implementation Meeting 

Warsaw 7^th October 2004

The Optional Protocol to the UN Convention against Torture: An Effective Means of Preventing Torture and Ill-treatment in OSCE participating States

The OSCE region, comprising the organization’s 55 participating States, is one of great diversity, a characteristic reflected at many different levels, not least with regard to human rights protection. While certain countries in the region ensure a high level of human rights protection, including from acts of torture and ill-treatment, it is deplorable that in other OSCE participating States a wide range of human rights violations, including torture and ill-treatment, are commonplace, in some instances, systematic. 

The rights to protection from torture and ill-treatment, and to redress in instances when an individual's rights are violated, are guaranteed in several international treaties, to which almost all OSCE participating States are state parties.[1] The principle that torture and ill-treatment is absolutely prohibited in all circumstances is also clearly stated in the domestic legislation of the majority of OSCE participating States.  

Yet irrespective of these international and domestic legislative guarantees, human rights monitors have continued to document alleged acts of torture and ill-treatment of persons deprived of their liberty by public officials throughout the OSCE region. According to a range of human rights monitors, acts of torture and ill-treatment take place in various official places of detention. While the incidence of such acts may vary significantly from country to country, their loci rarely do.

The contexts of abuse

The contexts, in which torture and other forms of ill-treatment most commonly occur, include at the moment of arrest, in police detention (often for the purpose of extracting a forced “confession” from a detainee), in pre-trial detention and in prison. Other less typical places of detention have also been the milieu for acts of physical and mental abuse by public officials, including psychiatric institutions, social care homes for the mentally and physically disabled and centres for detained immigrants and asylum-seekers.

In addition to deliberate acts of physical and mental abuse by public officials against persons deprived of their liberty, the egregious conditions of detention found in many detention facilities have also been a source of acute concern for human rights monitors in the region. Such concerns relate to a wide range of detention facilities, including, but not exhaustive of those referred to above.

It should also not be forgotten that in some OSCE participating States persons reportedly continue to fall victim to acts of torture and ill-treatment committed in non-official places of detention.

Disturbingly, there is little to suggest this intolerable situation will improve in the short term. The frequent inclusion of the issue of torture prevention on the agenda of various OSCE meetings in years gone by – of which the October 2004 OSCE Human Dimension Implementation Meeting is a case in point – is an indicator of the serious challenge which faces the OSCE, its participating States and human rights actors in the region. 

Paradoxically, many OSCE participating States could still do a great deal more to put an end to the practices of torture and ill-treatment in their countries and to build up public trust in their law enforcement agencies. The ratification of the Optional Protocol to the UN Convention against Torture[2] is an example of one simple, albeit effective measure, which OSCE participating States could undertake to counter such unacceptable abuses.

Taken together with other torture prevention measures, the APT believes that the Optional Protocol to the UN Convention against Torture will help to create a culture of prevention within places of detention throughout the OSCE region.

Please refer to the APT’s Statement No. 2 to Working Session No.7 for a list of these other measures.

The Optional Protocol to the UN Convention against Torture

Practical experience has shown that visits to places of detention are one of the most effective means to prevent torture and to improve conditions of detention. Visits not only have a deterrent effect but they also enable experts to examine at first-hand the treatment of persons deprived of their liberty and their conditions of detention. The Optional Protocol to the UN Convention against Torture, which will establish a system of regular visits to places of detention carried out by complementary international and national independent expert bodies, will make a valuable contribution to torture prevention once it comes into force.[3]

Regrettably, of the OSCE’s 55 participating States, only 14 States so far have signed this important human rights instrument, while fewer still have ratified it. To date, only four participating States - Albania, Denmark, Malta and the United Kingdom - have ratified the Optional Protocol.

In no circumstances, however, can the regular monitoring of places of detention by independent experts be allowed to remain a rarity in the OSCE region, particularly in view of the incidence of acts of torture and other forms of ill-treatment. Quite simply, many millions of persons deprived of their liberty throughout the OSCE region have a great deal to gain from the increased transparency and scrutiny of their places of detention.

While 45 of the 55 OSCE participating States are Member States of the Council of Europe and are therefore subject to adhoc and periodic visits of the European Committee for the Prevention of Torture (CPT), this should not be used as an argument by such countries not to sign or ratify the Optional Protocol to the UN Convention against Torture. Not only is there no provision for domestic visiting bodies under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, a significant number of Council of Europe Member States only receive CPT visits on average every two or so years.   

The APT very much welcomes the decision of those 18 OSCE participating States which, to date, have signed or ratified the Optional Protocol to the UN Convention against Torture. It therefore strongly urges other OSCE participating States to follow their positive lead and take immediate steps to open up their places of detention to enhanced international and domestic human rights scrutiny. 

APT recommendations

To prevent torture and other forms of ill-treatment in the OSCE region the APT recommends the following measures, which should be read in combination with the recommendations contained within APT Statement No. 2 to Working Session No.7:

·            Participating States should give serious consideration to the early ratification and, thereafter, should ensure the effective implementation of the Optional Protocol to UN Convention against Torture. The APT believes that ratification of this important human rights instrument will send a strong signal to the international community of the importance which each State attaches to combating torture;

·            Participating States are encouraged to initiate a dialogue with other OSCE participating States, which have already signed or ratified the Optional Protocol to UN Convention against Torture, in order to facilitate an exchange of information and best practices on the establishment and effective functioning of national visiting mechanisms;

·            Participating States are also urged to initiate a dialogue on the Optional Protocol to the UN Convention against Torture at the national level. These discussions should involve a wide range of relevant national actors, including representatives of civil society and any actors already engaged in the monitoring of places of detention;  

·            The OSCE/ODIHR could play an important role to facilitate international exchanges of information and best practices, as there exist various appropriate OSCE/ODIHR fora where such discussions could take place;

·            The OSCE/ODIHR could also play an important role facilitating dialogue at the country level. These activities would be particularly relevant in the light of the OSCE/ODIHR’s ongoing efforts to promote the monitoring of places of detention in certain OSCE participating States and its production of important information materials on the subject. The APT strongly encourages the OSCE/ODIHR to expand upon its invaluable activities in this respect and advance national discussions on the merits of the Optional Protocol to the UN Convention against Torture as an instrument to prevent acts of torture and ill-treatment;

·            The OSCE/ODIHR might greatly facilitate these activities by ensuring that all torture prevention initiatives, including initiatives to promote the Optional Protocol to the UN Convention against Torture, are coordinated and integrated by the so-called focal point on the prevention of torture within OSCE/ODIHR. The focal point could also help mainstream torture prevention activities within the OSCE in general;

·            The aforementioned attempts to counter practices of torture and ill-treatment must take place in a climate of genuine political will both on the part of OSCE participating States and the political structures of the OSCE. In this latter respect there exists a clear necessity for the OSCE Chairman-in-Office and the Permanent Council to attach much greater importance to the need to prevent torture in the region and address the issue on a regular, consistent basis. Without genuine political will at this level, overall progress will be difficult.

The APT reiterates its willingness to cooperate with and assist a range of actors, including the OSCE/ODIHR, civil society, National Human Rights Institutions and government representatives, not only to promote the ratification and effective implementation of the Optional Protocol to the UN Convention against Torture, but also other torture prevention measures.  

For further information about the issues raised in this statement or to obtain other APT materials please refer to the APT website (www.apt.ch) or contact the Europe and Central Asia Programme Officer, Matthew Pringle, or the United Nations and Legal Programme Officer, Edouard Delaplace, during the meeting.