Posted by cb683
12 August 2024CPT website: https://www.coe.int/en/web/cpt/-/council-of-europe-anti-torture-committee-cpt-carries-out-a-visit-to-azerbaijan
On 3 July 2024, the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) issued a Public Statement on Azerbaijan in which it highlighted the ‘outright refusal of the Azerbaijan authorities to cooperate’ with it. This is not simply a point of bureaucracy, failing to communicate with the CPT or to facilitate a visit (which they also did). Lack of cooperation in this relation means that human suffering including ‘widespread resort to physical ill-treatment (including, on occasion, torture) by the police in Azerbaijan’[1] continues with the authorities’ full knowledge. The CPT’s recourse to its little used Public Statement mechanism gives us pause to reflect on what it tells us not only about Azerbaijan and the CPT, but also in a wider sense about the project of human rights and state behaviour. In this blogpost, the CPT’s experience is presented as a case in example of the wider theme of state cooperation and the necessary but difficult diplomatic role played by human rights bodies.
The Wider Issue: State non-cooperation
Human rights progress relies on the willingness of states to comply with relevant norms, to be open to scrutiny (whether internal, external, publicly or behind closed doors) and to adapt or moderate their laws and practices as appropriate. This is not a point confined to the CPT context, or the European regional level. At the UN level, this understanding explains the approach of having for example human rights Treaty Bodies in place, Special Procedures mandates, and the Universal Periodic Review. At national level, it accounts for the role played by National Human Rights Institutions (NHRIs), or in the torture prevention context specifically, National Preventive Mechanisms. Azerbaijan is the latest in a list of states that is demonstrating no such willingness, but it is certainly not alone. Russia is discussed below. Other examples of the necessity for state buy-in (albeit in a juridical context) can be found here and here. The vital question is what can or should be done in such circumstances?
The CPT and Cooperative Dialogue
The CPT is an interdisciplinary non-judicial body of experts within the Council of Europe (CoE) whose mandate is the prevention of torture and ill-treatment, including by the improvement of standards of treatment and conditions of detained people.[2] Mandated under the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT) which entered into force in 1989, the CPT has access and undertakes regular preventive visits to places of detention[3] across all ECPT States Parties: namely, all Council of Europe states and the Russian Federation. The preventive approach is built on two central pillars of confidentiality and cooperation. Accordingly, the CPT’s visits form the basis for confidential, cooperative dialogue between the state and the CPT.
Confidentiality of information and exchanges[4] supports states’ ability to discuss any challenges or short-comings openly with the CPT, away from public scrutiny. Following a visit the CPT transmits its report to the state, including any recommendations for improvement in the protection, conditions and treatment of detained people.[5] The state should reply to this and for any ‘immediate observations’[6] (concerns to be immediately addressed), it must do so swiftly, according to the timeframe set out by the CPT. Engagement in dialogue is an aspect of cooperation required under Article 3 ECPT.
States early began authorising the publication of visit reports and their government’s responses and although often after a considerable (years long) delay, the practice is normalized. Indeed a number of states (16 to date) have agreed to the ‘automatic publication procedure’. Whereas Russia and Azerbaijan at one point became conspicuous as the only states not to have authorised publication. Hence there is a perceptible difference in states’ willingness to be transparent.[7]
Crucially, these are dialogues and relationships forged over years. Based on its findings the CPT makes recommendations to states, and state cooperation requires them to improve the situation in the light of the CPTs recommendations.[8] It is thus very apparent to the CPT when this cooperative requirement is not being met.
When Cooperation Fails
In all of the CPT’s visiting history, which began in 1990, the CPT has so far made only 11 Public Statements, on the situations in: Turkey (1992, 1996); Russian Federation (2001, 2003, 2007, 2019); Greece (2011); Bulgaria (2015, 2021); Belgium (2017), and Azerbaijan (2024). Public Statements are treated by the CPT as a last resort: the final point in a process, when even urgent high-level talks are perceived by the CPT to have failed. They are issued under Article 10(2) ECPT when the state ‘fails to cooperate or refuses to improve the situation’. They therefore signal not only that there are serious issues pertaining to torture and/or ill-treatment within the state but more precisely, that the state is not willing to address them.
One clue a Public Statement is being considered is reference in CPT documents to high-level talks accompanied with a nod to Article 10(2). In the CPT’s 33rd Annual Report from 2023 for example, we see this twice: for Lithuania and Greece.[9] For many states, the possibility of a Public Statement may be sufficient encouragement to redouble their efforts. Not so, it seems, for Azerbaijan.[10]
Diplomacy and Dialogue
The release of a Public Statement is not the end of diplomacy. The CPT’s approach is always to emphasize positive points, including in dialogue with a state that is not fully cooperative. The latest Public Statement frames ‘several major improvements in … two prison establishments’ as evidence ‘the Azerbaijani authorities can make significant progress.’[11] It can be questioned whether Azerbaijan was ever fully committed to improving, but this may not be entirely fair since it did after all ratify inter alia the Statute of the Council of Europe,[12] the European Convention on Human Rights (ECHR), and the ECPT.[13] Whilst the latter two ratifications may have been a precondition of Council of Europe (CoE) membership, they still occurred.
Moreover, improvements and the decisions eventually to publish reports, including six in one day in 2018, – admittedly, only a few months after high-level talks, – demonstrate some cooperation. It can be added to this list that in 2009 Azerbaijan ratified the UN Optional Protocol to the Convention against Torture (OPCAT) opening itself to the same level of visiting access from a UN body, the Subcommittee for the Prevention of Torture (SPT) as it had already to the CPT. As a requirement of the OPCAT, also in 2009, Azerbaijan designated a National Preventive Mechanism.
However, as the CPT’s Public Statement and its visit reports make clear, a number of vital, long-standing recommendations have remained unimplemented. Not noted by the CPT, but significant is that the SPT suspended its own visit to Azerbaijan in September 2014 due to lack of cooperation. That visit was made again in April 2015, but further details are not in the public domain.
According to the 2024 Azerbaijan Public Statement, the point when the state stopped responding positively, or at all, to dialogue with the CPT coincides directly with wider CoE politics.
‘[O]n 26 January 2024, two days after decision by the Parliamentary Assembly of the Council of Europe (PACE) not to ratify the credentials of the Azerbaijani delegation to PACE, the authorities informed the CPT that the high-level talks were cancelled without explanation.’[14]
PACE did this citing Azerbaijan’s failure to fulfil ‘major commitments’. For the CPT however, which may have preferred to continue its dialogue, complete silence ensued. This has impeded the CPT’s ability to revisit the state, leaving it comparably in the dark about the situation on the ground.
The CPT has expressed its full commitment ‘to continuing dialogue’[15] with Azerbaijan and observes that:
‘priority should be on implementing the CPT’s long-standing recommendations regarding the manner in which persons in the custody of law enforcement agencies are treated in Azerbaijan. Progress observed during the 2022 ad hoc visit in the implementation of the Committee’s recommendations regarding prisons demonstrates that this is possible provided there is the political will.’[16]
Since PACE’s decision, which had the effect of suspending Azerbaijan’s Parliamentary delegation from participating in PACE, it seems political appetite for even partial cooperation has evaporated. There are even suggestions that Azerbaijan is considering withdrawing from the CoE and ECHR if that participation is not restored, discussed here. The experience of Russia is that in spite of leaving the CoE it remains party to the ECPT, but it remains to be seen whether this is meaningful in practice: the CPT has not conducted a visit to Russia since this happened. It does tell us something of the CPT’s thinking however: that it is better the state remains party to the ECPT, with at least the possibility of oversight and the hope of cooperation towards improvement, than that it leaves it altogether.
Whether other human rights bodies with comparable issues of state cooperation would do the same is context-driven and of course options are likely, as here, to be limited. The CPT for its part, places its faith in dialogue and diplomacy.
It can only be hoped now that Azerbaijan will find the willingness to re-engage, and committedly, to the improvement of treatment and conditions of detained people in its jurisdiction.
[1] Azerbaijan Public Statement CPT/Inf (2024) 24, para. 4.
[2] For a detailed examination of the CPT and its work see Bicknell, Evans and Morgan, ‘Preventing Torture in Europe’ (Council of Europe, 2018).
[3] A term which encompasses many different contexts including police stations, prisons, immigration detention, psychiatric detention and social care homes.
[4] Article 11, ECPT.
[5] Article 10(1), ECPT.
[6] Article 8(5)
[7] Book, p.54
[8] A phrase consistently rehearsed through CPT Reports, and which reflects the wording in Article 10(2) ECPT when cooperation fails.
[9] For which it respectively ‘set in motion’ and ‘open[ed] the procedure’ under Article 10(2).
[10] In the case of Azerbaijan, the CPT’s Annual Report that indicates high-level talks made no reference to the procedure. It is indicated clearly in the state report however, which the CPT published alongside its Public Statement, as a process commenced in July 2023. See CPT/Inf (2024) 23, para. 7.
[11] Azerbaijan Public Statement CPT/Inf (2024) 24, para. 4.
[12] Ratified 25 January 2001
[13] Both ratified on 15 April 2002
[14] Azerbaijan Public Statement CPT/Inf (2024) 24, para. 6.
[15] Azerbaijan Public Statement CPT/Inf (2024) 24, para. 16.
[16] Azerbaijan Public Statement CPT/Inf (2024) 24, para. 15.