The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the OPCAT) in Europe: Duplication or Reinforcement?
| DOI | 10.1177/1023263X1101800303 |
| Published date | 01 September 2011 |
| Date | 01 September 2011 |
| Author | Gauthier de Beco |
| Subject Matter | Article |
18 MJ 3 (2011) 257
THE OPTIONAL PROTOCOL TO THE
CONVENTION AGAINST TORTURE AND
OTHER CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
THE OPCAT IN EUROPE:
DUPLICATION OR REINFORCEMENT?
G B*
ABSTRACT
is art icle examines whe ther the Optional Protocol to the Convention against Torture
and other Cruel, Inhuman or Degrading Treatment or Punishment (the OPCAT) leads
to duplica tion or reinforcem ent in Europe. In addition to creating the Subcommittee on
Prevention of Torture (SPT), the OPCAT requires that states parties establish or designate
national preventive mechanism s. In the Council of Europe, states adopted the E uropean
Convention for the Prevention of Torture (the ECPT), which created the Committe e for
the Prevention of Torture (the CPT). Aer hav ing outlined the history of the OPCAT and
the ECPT and the funct ion of the CPT and the SPT, the article examin es the dierenc es
between the OPCAT and the ECPT and the sharing of tasks between the SPT and the CPT.
It also discusses cooperation between the two bodies as well as cooperation betwee n the
CPT and national preventive mechanisms. Finally, it examine s obstacles to cooperation
between the SPT a nd the CPT. e article comes to the conclusion that the SPT could
focus on the establishment and strengthening of national preventive mechanisms, whereas
the CP T could continue to visit pl aces of detention to prevent torture and inhuman or
* Ph.D. in Law, University of Louvain, Belgium; LL .M., University of Nottingha m, United Kingdom; MA
in Law, Kathol ieke Universiteit Leuven, Belgium. e aut hor is Associate Researcher at the Centre for
Philosophy of Law of the Universit y of Louv ain and Legal Adv isor at t he Human Rights Unit of the
Belgian Mi nistry of Justic e. He is also Teaching Fellow in Human Rights at the S chool of Public Policy
of the University Col lege London f rom September 2011 to January 2012. e v iews express ed in th is
article are e xclusively those of the aut hor.
Gauthier de Beco
258 18 MJ 3 (2011)
degrading treatment or punishment against person s deprived of their liberty in European
states.
Keywords: CP T; ECPT; National Preventive Mechanisms; OPCAT; SPT
§1. INTRODUCTION
Torture is considered to be one of t he most serious violations of huma n rights. In order
to combat it, monitoring bodies have been created to v isit places of detention. Recently,
states adopted the Optional Protocol to the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Pu nishment (the OPCAT),1 which e stablished
visiting mechanisms at both the national and international levels. While creating a
Subcommittee on Prevention of Torture and Other Cruel, In human or Degrading
Treatment or Punishment of the Committee against Torture (the SPT),2 t he OPCAT
requires that states parties establ ish or designate ‘visiting bodies for t he prevention of
torture and other cruel, inhuman or degrading treatment or punishment’ commonly
called ‘national preventive mec hanisms’.3 In t he Council of Europe, states adopted
the European Convention for the Prevention of Torture and I nhuman or Degrading
Treatment or Punishment (the ECPT),4 wh ich created the European Commit tee for the
Prevention of Torture and Inhuman or Degradi ng Treatment or Punishment (the CPT).
ere are a lso other visiting mechanisms in Eu rope, including the Council of Europe’s
Commissioner for Human Rig hts. e OPCAT thus does not operate in a vacuum .
Article 11 (1) (c) of the OPCAT provide s that the SPT should ‘[c]ooperate (…) wit h
the releva nt United Nations orga ns and mecha nisms as well as with the internationa l,
regional a nd national institut ions or organizations working towards the strengthening
of the protection of all persons against tor ture and other cruel, inhuman or degrading
treatment or punishment.’ Regarding regiona l v isiting mechanisms, Article 31 also
states t hat ‘[t]he [SPT] and the bodies established under (…) reg ional conventions are
encouraged to consult and cooperate with a view to avoiding duplication and promoting
eectively the objectives of [the OPCAT]’. is article exami nes how this applies to
European states. Does t he OPCAT lead to duplication or reinforcement in Europe? How
could the SPT and t he CPT mutually strengt hen each other? is is an import ant issue,
since it concerns almos t half of the states par ties to the OPCAT. On 15 July 2011, 28 out
of the 60 states part ies to the OPCAT were also parties to the ECPT.
1 United Nations Optional Protocol to the Convention against Torture and other Cruel, In human or
Degrading Treatment or P unishment, 18 Dec ember 20 02, A/ RES/57/199. e OPCAT entere d into
force on 22 June 2006.
2 OPCAT Article 2, para . 1.
3 OPCAT Article 3 and 17.
4 European Convent ion for the P revention of Torture and Inhum an or Degra ding Treatment or
Punishment , 26 November 1987. e ECPT entered into force on 1 Februar y 1989.
To continue reading
Request your trial