EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

CHAPTER XII. TORTURE PREVENTION COMMITTEE AND ITS LINKS WITH THE COURT

1. ABOUT THE CPT The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) is an international monitoring mechanism of the Council of Europe. It is based on an international treaty – the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT) – which was adopted by the Committee of Ministers of the Council of Europe on 26 June 1987 and entered into force, following the ratification by seven State Parties, on 1 February 1989. At present, all 47 Member States of the Council of Europe are State Parties to the ECPT and the CPT thus has 47 members. The main task of the CPT is to carry out visits to places where persons may be deprived of their liberty by a public authority and to assess how they are treated . Unlike the European Court of Human Rights (ECtHR), the Committee is a non-judicial body , does not in principle deal with individual complaints and is not empowered to issue decisions on individual cases or to condemn State Parties. While the ECtHR acts upon complaints from individuals (or from States) claiming that human rights violations have taken place, the role of the CPT is preventive – the aim of the country visits is to examine the treatment of persons deprived of their liberty and make recommendations with a view to improving the situation and strengthening, if necessary, their protection from torture and inhuman or degrading treatment or punishment. This may be understood as a concrete expression of the principal of co-operation between the CPT and State Parties, set out in Article 3 of the ECPT, which is one of the two key principles governing the work of the CPT (the other principle is the principle of confidentiality which is discussed later in this chapter in connection with the publication of CPT reports). The mandate of the CPT covers a relatively broad range of places. The key criterion in this respect is whether the place holds (or may hold) persons deprived of their liberty by a public authority. The Explanatory Report to the ECPT makes it clear that the notion of “deprivation of liberty” is to be understood within the meaning of Article 5 of the European Convention on Human Rights (ECHR) as elucidated by the case law of the ECtHR. The boundaries of the CPT’s mandate are thus set by the ECtHR’s interpretation of the said provision. Nevertheless, certain guidance as to the scope of the mandate is still provided in the Explanatory Report which states that visits may be carried out in private as well as public institutions and that it is irrelevant whether the deprivation of liberty in a given case is lawful or unlawful. Further, it is immaterial whether the deprivation of liberty is based on a formal decision or not. This consideration opens the way for the CPT to visit places which are accommodating persons whose concrete situation amounts to a de facto deprivation of liberty, without a formal decision having been issued. As the CPT has clarified in its reports, the situation of such persons, typically certain patients held in psychiatric establishments and certain residents of social care homes, who are formally regarded as voluntary, but in practice are not free to leave the institution accommodating them, is of particular concern to the Committee. These persons can often be subjected to, for example, treatment and/or means of physical restraint without being protected by the legal safeguards applicable to involuntary patients/residents. In practical terms, the places visited by the CPT include police establishments, remand prisons as well as those for sentenced prisoners, detention centres/correctional facilities for juveniles and holding centres for foreigners detained under aliens legislation, as well as psychiatric

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