Ministers’ Deputies

Records

CM/Del/Act(2009)1070-final (Confidential)   15 January 2010

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1070th meeting, 18 November 2009

Records
Addendum to CM/Del/Dec(2009)1070

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CONTENTS[1]

Page

2.1        The Council of Europe and the conflict in Georgia

            a. “The consequences of the war between Georgia and Russia” –

            Parliamentary Assembly Recommendation 1846 (2008)

            b. “The humanitarian consequences of the war between Georgia and Russia” −

            Parliamentary Assembly Recommendation 1857 (2009)................................................................. 2

            c. Reports on the follow-up to the conflict.................................................................................... 3

4.1        European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or

            Punishment (CPT)

            a. Hearing of the President of the CPT......................................................................................... 4

Item 2.1a,b

The Council of Europe and the conflict in Georgia

a.         “The consequences of the war between Georgia and Russia” –

Parliamentary Assembly Recommendation 1846 (2008)

b.         “The humanitarian consequences of the war between Georgia and Russia” −

Parliamentary Assembly Recommendation 1857 (2009)

The Representative of the Russian Federation made the following statement:

“The Russian delegation would like to thank the Slovenian Chairmanship and the Secretariat for their efforts aimed at attaining a compromise on the Committee of Ministers’ reply to the PACE Recommendation 1846 (2008).  From the very beginning, we expressed our consent to work on the basis of the chair’s proposals and we do accept the chair’s final version as a consensual text.  It represents a description of some real facts which took place in the Committee of Ministers’ activities since August 2008.  That is an objective list of events. 

Nevertheless, the Russian delegation would like to recall key elements of its interpretation of the situation which is behind the facts mentioned in the chair’s text. 

We do not see that the former Swedish Chair and Secretary General made progress in promoting a successful Council of Europe policy in the aftermath of the conflict in Georgia.  They had a wrong vision of the events and it was a big mistake for the whole of our Organisation.  The recent Tagliavini report is convincing evidence of this distorted vision.  Instead of elaborating real measures which could contribute to the normalisation of the humanitarian situation in the conflict region, the former Swedish chair tried to prove the equal responsibility of Georgia and the Russian Federation for the conflict, imposing the enhanced monitoring procedure against Russia.  That was the main idea of the so-called “Action Plan” which was totally unacceptable and unrealistic.  That predetermined the contents of the Secretary General’s reports about the situation in the region and the impossibility to use these reports as the basis for a common, effective and consistent Council of Europe policy in the zones of crisis.  Such an approach paralysed the activity of the Committee of Ministers in the region for months. 

The Russian side is therefore grateful to the former Spanish Chair for its attempt to break this vicious circle.  We do believe that the Madrid Ministerial Session can be a new starting point in the Council of Europe policy in the conflict region. 

The Russian delegation hopes that the Committee of Ministers will be able to overcome the mistakes of the past period and busy itself with the real humanitarian problems of the region. 

The presence of the Council of Europe in the region is the major task for the future.  That is why the Russian side supports the draft reply to PACE Recommendation 1857 (2009).  It proceeds from the idea of Mrs Jonker’s report presented in the PACE and from her ideas expressed in this hall recently.  The Russian side shares her approach and ideas stated in the chair’s draft reply. 

We do in particular believe that the main obstacle for the humanitarian access of the international community, including the Council of Europe, into the region is the non-constructive approach of the Georgian side, first of all, the so-called “occupation law”.  In our opinion, the Venice Commission confirmed this misgiving of Mrs Jonker. 

We believe that the Council of Europe should act and do it quickly.  We invite every delegation present here to recognise the realities of the situation on the spot and to act accordingly in an attempt to address at last the real humanitarian problems of the peoples living there.  We appeal to turn as soon as possible the wrong page of the previous period and engage finally the Council of Europe and its institutions in constructive and real work in the region, starting from the decisions of the Madrid Ministerial Session.”

The Representative of Georgia made the following statement:

“The Georgian delegation is grateful to the Slovenian Chairmanship as well as the Secretariat of the Committee of Ministers for providing their valuable assistance and good offices to the delegations concerned, which was intrinsic to reaching a consensus on the matter.

In order to find a solution in the very difficult consultation process, the Georgian delegation had to withdraw some very important amendments to draft replies to Parliamentary Assembly Recommendations 1846 (2008) and 1857 (2009), contained in the documents DD(2009)371, DD(2009)493 and DD(2009)545, as  well as in my letter from 10 June 2009 to the Slovenian Chairmanship. The suggested amendments were based on the factual approach and aimed at complementing an initial draft provided by the Secretariat.

As under the Swiss Chairmanship the Committee has to continue to work for the preparation of the reply to the Parliamentary Assembly Recommendation 1869 (2008), the Georgian delegation remains hopeful that the elements sacrificed to the consensus needed for the adoption of the two above-mentioned replies to the PACE recommendations will be taken on board in the process of drafting the third reply and that the Swiss Chairmanship will duly take into account our suggestions contained in the above-mentioned documents.”

Item 2.1c

The Council of Europe and the conflict in Georgia

c.         Reports on the follow-up to the conflict

The Representative of Georgia made the following statement:

“I would like to refer to the document “The Council of Europe and the conflict in Georgia – Activities for the promotion of Council of Europe values and standards” (SG/Inf(2009)5-add2) and express my appreciation to the Secretary General for presenting this comprehensive and valuable document which completes the package of documents requested by the Ministers’ Deputies at their 1048th meeting on 11 February 2009 and confirmed by the Committee of Ministers in Madrid on 12 May 2009.

I am also grateful to the Secretary General that he continues the practice established under his predecessor, according to which the two national delegations concerned are given a chance to receive and comment on an advance copy, prior to the distribution of the document among all the delegations.

The Georgian authorities welcome the updated assessment by the Secretary General of the state of implementation by the Russian Federation and Georgia of their commitments and obligations undertaken upon joining the Council of Europe, and restate its commitment to continuously engage in fulfilling their outstanding commitments to the Council of Europe. It is our hope that the other side in the conflict – the Russian Federation – will do the same.

The Georgian authorities will seize the opportunity of having the Council of Europe Commissioner for Human Rights and the Director General of Democracy and Political Affairs of the Council of Europe in Tbilisi in the coming weeks to foster a dialogue between Georgia and the Council of Europe on future co‑operation.

I would like to emphasise our strong belief that the report on the human rights situation in the areas affected by the conflict in Georgia (SG/Inf(2009)15), as well as the document “The Council of Europe and the conflict in Georgia – Activities for the promotion of Council of Europe values and standards” (SG/Inf(2009)5-add2) will greatly facilitate the preparation and discussion of the Council of Europe’s further actions to deal with the consequences of the Russian invasion and ongoing occupation of the territories of Georgia.

Therefore, the Georgian authorities look forward to the subsequent comprehensive reports of the Secretary General both on the human rights situation in the areas of conflict in Georgia as well as on activities for the promotion of Council of Europe values and standards. These reports constitute valuable contributions by the Council of Europe to the international response to the conflict in Georgia, including to the Geneva talks.”

Item 4.1a

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

a.         Hearing of the President of the CPT

The President of the CPT made the following statement:

“Despite the risk of anniversary fatigue in the Council of Europe in 2009, the CPT decided to organise on 6 November, here in Strasbourg, a conference to mark the completion of 20 years of activities by the Committee. Indeed, the CPT felt that a milestone had been reached in the combat against torture and other forms of severe ill-treatment in Europe. Not, I hasten to add, simply due to the fact that the CPT was turning 20, but because this event coincided with the opening of what can legitimately be described as a new chapter in the fight against ill-treatment. Universal machinery for the prevention of torture is now being implemented in many parts of the globe, including in Europe, bringing with it new actors possessed of powers similar to those enjoyed by the CPT – the UN Subcommittee on Prevention of Torture, the SPT, and national preventive mechanisms, the NPMs. Already, 26 European states have ratified the treaty establishing this universal machinery, another 11 are signatories, and the process of establishing NPMs in these countries is underway.

The whole purpose of the 6 November Conference on “New Partnerships for torture prevention in Europe” was to build synergies between the preventive bodies at national, regional and universal level. Provided they co‑ordinate their efforts in order to maximise effectiveness, these bodies can together have a significant impact. I think it is fair to say that the conference was successful in laying the first foundations of the co‑operation and complementarity that we all want. But it was just a beginning; I can assure you that the CPT will continue to be proactive in developing relations with both the SPT and the nascent NPMs.

At the outset of its 19th general report, the CPT has attempted an overall assessment of what has been achieved since the Committee first met in November 1989 and has identified some of the challenges that lie ahead. Progress has undoubtedly been made in areas covered by the CPT’s mandate, but there are certainly no grounds for complacency. In particular, two longstanding problems are highlighted by the Committee in its general report: impunity and prison overcrowding.

It cannot be repeated too often that the credibility of the prohibition of torture and other forms of severe ill‑treatment is undermined each time officials responsible for such offences are not held to account for their actions. The Committee of Ministers has recognised the importance of this issue by setting up a Committee of Experts tasked with preparing guidelines against impunity for human rights violations, and the CPT greatly welcomes the opportunity it has been given to contribute to this work. I would like to stress here that ensuring the effectiveness of investigations into human rights violations that may have occurred must be combined with measures at the institutional level to prevent impunity. As the CPT commented in its 14th general report, “combating impunity must start at home”, that is within the police or prison service, security agency or military authority concerned.

As for prison overcrowding, the CPT drew attention to this problem as long ago as 1992, in its 2nd general report. Regrettably, it is still to be found – frequently at alarming levels – in penitentiary systems across Europe. What does an overcrowded prison entail?  It means cramped and unhygienic accommodation, a constant lack of privacy, even when performing such basic tasks as using a sanitary facility, reduced out‑of‑cell activities, and overburdened health-care services, as well as increased tension and hence more violence between prisoners and between prisoners and staff. It comes as no surprise to the CPT that the European Court of Human Rights is increasingly finding violations of Article 3 of the European Convention on Human Rights on the grounds of overcrowding. And it should be remembered that the negative effects of overcrowding are not confined to the prisoners concerned; overcrowding inevitably undermines the process of rehabilitation, leading to increased recidivism and hence greater danger for the outside community. The various interrelated measures required to tackle prison overcrowding have been identified, notably by your Committee in 1999. What is needed now is the political will to implement them.

Over the years, the list of problematic subjects falling within the scope of the CPT’s mandate has continued to grow. One of those subjects concerns the treatment of persons detained under aliens’ legislation; this has been a focus of many of the Committee’s visits during the last twelve months. In the substantive section of the 19th general report, the CPT builds upon the standards that it has already developed in this area, spelling out the safeguards that should be afforded to detained irregular migrants. The Committee is fully conscious of the great difficulties confronting certain European countries as a result of the significant influx of irregular migrants; and those countries are certainly entitled to expect other members of the international community to make a concerted effort to help them tackle this problem. That said, nothing can excuse the deplorable conditions that the CPT finds on occasion in facilities accommodating persons detained under aliens’ legislation.

Let me add a few words about the geographical scope of the CPT’s field of operations, a question which is addressed in some detail in the opening section of the 19th general report. The ambition of the CPT is to exercise its mandate in every corner of Europe – and I am sure that this is also the wish of the Committee of Ministers. There should be no human rights vacuum in any part of the continent. Of course, there are a number of regions in Europe in which the central authorities are not in effective control; and finding means of enabling the CPT to operate in these regions is not a straightforward matter, all the more so given the treaty-based character of the Committee’s mandate. Obstacles are easy to identify; I would only ask that everyone involved also expend maximum energy towards overcoming those obstacles in a way that will enable the CPT to operate in an effective manner in the regions concerned.

And there is another part of our continent in which the CPT has not yet been able to exercise its mandate, but one where the central authorities are certainly in effective control; I am referring to Belarus. It is quite simply an aberration that a country of some ten million citizens situated in the heart of Europe should be off-limits to the CPT. The European Convention for the Prevention of Torture is open to non-member states and I would like to stress once again that the CPT hopes the time will soon be ripe for the Committee of Ministers to extend an invitation to Belarus to accede to the Convention.

Needless to say, effective on-site monitoring of the treatment of persons deprived of their liberty in 47 states (and perhaps soon 48) has resource implications; it will not be possible without adequate means, both human and financial. The CPT has no shortage of members, and the necessary budgetary appropriations for the Committee’s visits have to date always been available. Nevertheless, staff-related factors have been acting as a brake on the development of the CPT’s visit programme. These factors are spelt out in some detail in paragraphs 106 to 109 of the general report. As you will see, the CPT is certainly not requesting a significant increase in the size of its Secretariat. The Committee’s requests are very modest and it trusts that they will receive a favourable response.

As regards the composition of the CPT, the biennial renewal of the Committee’s membership due at the end of this year has almost been completed. And as far as I can see, there will continue to be a good spread of professional expertise within the Committee. Nevertheless, 2010 will be a challenging year for the CPT; it is about to lose a number of highly experienced members and many new members will need to be acquainted

with the Committee’s working methods. Looking forward to the next biennial renewal, I very much hope that it can be completed on time and even slightly ahead of schedule, that is before the CPT’s plenary meeting in November 2011; this would greatly facilitate the organisation of the Committee’s activities during the following year.

I wish to reiterate that the effectiveness of the CPT will ultimately depend on the quality of its members; this may seem a trite remark, but it is no less true for that. The CPT appreciates the care with which the Assembly and your Committee examine the lists of candidates. However, it is also essential that the selection procedures at national level ensure that the persons best qualified to be elected as CPT members are placed on those lists in the first place. Procedures involving public calls for candidatures and interviews with short-listed candidates already exist in some countries, and I hope that procedures of this kind will be established in all member states.

I would like to end my statement to you today with a few reflections on the two precepts that form the core of the Convention establishing the CPT – co-operation and confidentiality. The principle of co-operation between the CPT and national authorities is expressly laid down in the Convention and can be described as the lifeblood of the Committee’s activities. The import of this principle goes far beyond simply ensuring that the process of carrying out visits runs smoothly, important as that may be; the fundamental purpose of co‑operation between the CPT and states is to strengthen the protection of persons deprived of their liberty from ill-treatment. In other words, the raison d’être of the system established by the Convention is to bring about necessary change, in the light of the CPT’s findings. Unfortunately, too often, recommendations on key issues repeatedly made by the Committee, visit after visit, remain unimplemented. The CPT will strive to overcome these difficulties, through an ever more intense post-visit dialogue involving the organisation of high-level talks with Ministers. And I remain confident that all the states concerned will be ready to engage in constructive discussions with the Committee on the issues involved.

As for the second precept – confidentiality – the Convention stipulates that the information gathered by the CPT in relation to a visit, its visit report and its consultations with the Party concerned shall be confidential. The CPT takes that rule very seriously, to the point that it has often been criticised by others for being too secretive; and there were some hints of that criticism during the 6 November conference. It has been argued that confidentiality does not equate to secrecy, that it does not prevent the transmission of information to third parties, provided that this is done “in confidence”. I wish to make clear that the CPT does not subscribe to any such interpretation of the rule of confidentiality laid down in the Convention establishing the Committee.

Confidentiality, properly understood, can be essential for building mutual trust, which in turn can be decisive in specific situations for strengthening the protection of persons deprived of their liberty; this is particularly true in the context of the CPT’s consultations with Parties to the Convention. At the same time, the rule of confidentiality can certainly act as a hindrance to the process of bringing about necessary change, particularly when it prevents the disclosure of the CPT’s visit reports. This is why the CPT appreciates so much the well-established practice of states lifting the veil of confidentiality and agreeing to have the Committee’s findings placed in the public domain. Allow me to seize this opportunity to revise what is said in paragraph 46 of the 19th general report, and to welcome the decision of the Azerbaijani authorities to have published the report on the CPT’s most recent visit to their country; that report will be made public later this month.

As the Deputy Secretary General rightly pointed out at the 6 November conference, the establishment of the CPT was an extraordinary and courageous act by the member states of the Council of Europe, providing proof of their profound belief in human rights. And further proof of that belief is now being provided by the extensive and rapid adherence of member states of this Organisation to the new universal machinery for the prevention of torture.  The task of the CPT was never going to be easy, but it is made infinitely less difficult by this attachment to fundamental values shared by the states in which it operates.”