This discussion paper is submitted on behalf of Cairo Institute for Human Rights Studies (CIHRS), Centro de Estudios Legales y Sociales (CELS), Federation Internationale de l’Action des Chrétiens pour l’Abolition de la Torture (FIACAT), International Rehabilitation Council for Torture Victims (IRCT), REDRESS and World Organisation Against Torture (OMCT)
The undersigned organisations welcome the opportunity to have a meeting dedicated to an exchange of views with the experts on the way the CAT is working in order to identify positive and negative aspects of some procedures and to formulate concrete proposals to improve the process.
As a preliminary comment, we would like to welcome the work done by the CAT on the reporting process as well as to stress the need to give more consideration and importance to other of the committee’s mandates, such as the individual communications procedure and the adoption of general comments.
With regard to general comments, we recall the great value general comments have in guiding States in the implementation of their international obligations. Consequently, we encourage the CAT to adopt more general comments taking into account the evolving human rights standards and other committees’ general comments. The decision-making process, including the selection of the topic as well as the drafting process should be transparent and conducted in consultations with all relevant stakeholders.
We warmly welcome the drafting of a new general comment, in particular on article 14. The right to obtain redress and to fair and adequate compensation, including the means for as full rehabilitation as possible is not only central for the rehabilitation of the victim of torture but also in the fight against impunity and to ensure the non-repetition of the violations. Through the adoption of Views to individual communications and concluding observations, the CAT has developed an interesting and progressive interpretation of this article, which needs to be clarified, systematised and expanded.
Also, we recall that the OHCHR, as a secretariat for the Treaty Bodies, plays an indispensable role in the smooth functioning of all stages of the reporting process and of their other activities. Therefore, it is essential that the secretariat has the necessary resources to provide effective support to all steps in the reporting cycle including the follow-up stage.
In this discussion paper, we have identified a few selected areas of interest and concern that the undersigned organisations would like to discuss during the meeting. However, this is not an exhaustive list.
1) Accessibility to the Committee
NGOs are key actors working for human rights and for the implementation of the concluding observations and views adopted by the Committee. Their full involvement is one of the most important factors of the UN Treaty Bodies system. We would therefore like to make some suggestions to further improve the accessibility to the CAT for NGOs.
Improve the regularity and transparency of scheduling information so that NGO’s have enough time to prepare and provide inputs to the CAT
The submission of timely, comprehensive and targeted information is crucial in the preparation of lists of issues and the review of States Parties by the CAT. It requires outreach efforts to make the schedule and working methods of the CAT known to as many civil society actors as possible. This is particularly important in consideration of the new LoIPR procedure, which has seen some complications with regards to transparency.
Therefore, to enhance the involvement and subsequent impact of civil society we recommend that the Committee more actively solicits information from NGO to LoIPRs, State report reviews and the follow-up procedure well in advance. The mailing list used by the secretariat to encourage this participation could be reviewed to involve a broader range of civil society organisations. The schedule of future sessions could be done and made available for at least two years in advance. The CAT web-pages could be made more user-friendly and intuitive to permit greater involvement from NGOs who are less frequently involved in CAT procedures.
Transparent forum for discussions so that NGOs can participate
In order to enhance the participation of national and local NGOs in CAT sessions, our organisations recommend that the CAT considers a wider use of technology that would promote the interaction between national and local NGOs and the experts.
To ensure effective access for persons not physically present at the review, all public CAT sessions should be webcast to promote the widest accessibility, understanding and ownership of the process. Further, webcasts can also be used to enable the Government representatives supporting the review from capitals can follow questions and comments from the CAT in real time, facilitating timely responses. Nevertheless, we recall that it should not prevent the State to send a diverse and high-level delegation to the session of the Committee.
To ensure that NGOs which cannot be physically present at the review have opportunities to provide oral briefings to the CAT, video conferencing should be made available between NGOs in the country under review and Committee experts. UN field offices can play a key role in facilitating this.
Further, for the purpose of ensuring the full and effective implementation of the concluding observations and views, videoconferences with local NGOs and Government representatives could also be made part of any future expansion of the follow-up procedure, as an additional tool.
2) The LOIPR procedure
The LoIPR procedure implemented by the CAT is a very welcome innovation, which has subsequently been adopted by other treaty bodies (currently CCPR and CMW). The procedure offers great potential in promoting a more focused review and a genuine review cycle as opposed to the old procedure where States treated Treaty Body reviews as an event rather than an ongoing interaction.
However, the procedure also offers a number of challenges that are inherent to the implementation of new and innovative working methods. Some of the challenges are briefly discussed in the paragraphs below. We also think that further in-depth assessment of the LoIPR procedure would be very useful before future development.
Timely access to information on adoption of LoIPRs in future sessions is crucial for the ability of NGOs to submit information to inform this process. This combined with public solicitation of input to the LoIPRs is likely to significantly enhance the country information available to the Committee when it adopts LoIPRs. NGOs need time to prepare to provide such input and those who are relying on project funds to engage also need time to find a donor. With the systemic approach to adoption of LoIPRs it should be possible to publish such information 1-2 years in advance.
Rigid scheduling of the reporting cycle is another important element in the successful implementation of the new procedure. The new procedure offers a unique opportunity for the Committee to have a lighter but more regular engagement with States under review. However, we believe that there is a need to be more strategic about the deadlines for submission of the State report and the hearing in Geneva. Currently, there is a time span between 16-20 months from adoption of a LoIPR to the deadline for reporting and with this deadline usually being between sessions, it is likely that the hearing in Geneva will only take place approximately 10 months after the reporting deadline. This gives a total period of 26-30 months from LoIPR adoption to the hearing in Geneva for those States that report on time. We recommend that the Committee seek to limit this time span though shorter and more strategically timed reporting deadlines. As part of this effort, the Committee should also consider what is the lifespan of an LoIPR in cases where States do not report on time.
Non-reporting States is an issue of concern to all treaty bodies, including CAT. This problem becomes even more pertinent in the context of LoIPRs where the Committee and the Secretariat invests resources in their development before the State has shown any signs of willingness to report. We therefore recommend that the Committee consider taking a more proactive approach to non-reporting States. In this regard, the Committee should consider adopting the current procedure of the Human Rights Committee to review one non-reporting State per session.
3) Follow-up to Concluding observations and views on individual communications
We will focus our comments on the formal follow-up and monitoring process conducted by the CAT in order to obtain the full and effective implementation of its recommendations. Nevertheless, we would like to recall that in-country implementation of the concluding observations and views firstly is the obligation of the States Parties according to their international obligations.
The lack of implementation of the concluding observation and decisions is a very serious challenge that requires an improvement of the follow-up process at various levels.
Resources dedicated to the follow-up process
Taking account of the considerable amount of work that follow-up requires, it is vital that it is not vested on a single follow-up Rapporteur on recommendations or individual decisions. We consider that the Country Rapporteur should be involved in the follow-up with their respective countries in close coordination with the Follow-up Rapporteur. In addition, more time should be allocated to discussions on follow-up issues during the session of the CAT. There is also need for the allocation of additional human resources within the OHCHR secretariat to support the treaty body follow-up work.
Concise and targeted recommendations and remedies
Consideration should also be given to improving the quality of the recommendations in concluding observations to state party reports to ensure that they are more concise and targeted. In that respect, we observe – political will provided – the significant impact of detailed and practical recommendations which integrate proposals of implementation measures. Also, the bound follow-up procedure (within one year after the review) implemented by the CAT should be systematically guided by objective criteria such as urgency and feasibility. Similarly, remedies ordered in relation to individual complaints should be detailed and specific, better allowing for enforcement in the state concerned and objectively measurable follow-up.
Involvement of the NGOs in the follow-up process
NGOs should be involved in the follow-up procedure on concluding observations and views including by being allowed to intervene during CAT meetings discussing follow-up to concluding observations and views. With regard to the information provided on the follow-up process, we welcome the efforts already made to enhance the transparency and the visibility of the follow-up process to concluding observations, especially through the creation of a separate and detailed webpage. Also, we think that additional efforts should be made to improve the information provided on the follow-up to decisions/views. We recommend the creation of a separate webpage on the follow-up to individual complaints which would enable the posting of public information including general information on the case, violations found, remedy recommended, and further action taken and required, as it is presented in the interim and annual reports of the CAT.
Addressing the lack of implementation of concluding observations and views to individual communications
The CAT should intensify its efforts in addressing the lack of implementation of treaty recommendations and of individual decisions. We would like the CAT to consider conducting its own field follow-up missions, especially in cases of persistent non-implementation. We also recommend that joint actions (letters, meetings, missions) and increased coordination between the various UNTB should be developed with respect to States that have experienced particular difficulties with the implementation of the recommendations and decisions. Generally speaking, we think that the creation of some form of a specific treaty body follow-up coordination is highly necessary.
Need for best practice studies
The CAT should conduct ongoing analysis of the functioning of the follow-up procedure, which would enable it to critically assess the degree of implementation of all concluding observations based on objective criteria. The creation of the ICM working group on follow-up represents in that regard a real opportunity for the various UNTB to share good practices and join their efforts to ensure the effective implementation of recommendations and decisions. It would be highly useful if the UNTB prepared a country sheet on the assessment of the implementation of all treaty body recommendations. A best practice study could provide guidance on how states can improve implementation of recommendations and decisions, including through the involvement in the implementation process of institutions/organs in various levels of the State and actors of the civil society.
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