CM(2002)7 23 January 2002
784 Meeting, 21 February 2002
4 Human Rights
Implementation of Protocol No. 2 to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
Secretariat memorandum prepared by Directorate General II
1. From 1 March 2002, the rules governing the election of members of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) will be modified by the entry into force of Protocol n° 2. The Protocol amends certain provisions of Article 5 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter "the Convention") as follows 1 :
"3. The members of the Committee shall be elected for a period of four years. They may be re-elected twice. However, among the members elected at the first election, the terms of three members shall expire at the end of two years. The members whose terms are to expire at the end of the initial period of two years shall be chosen by lot by the Secretary General of the Council of Europe immediately after the first election has been completed.
4. In order to ensure that, as far as possible, one half of the membership of the Committee shall be renewed every two years, the Committee of Ministers may decide, before proceeding to any subsequent election, that the term or terms of office of one or more members to be elected shall be for a period other than four years but not more than six and not less than two years.
5. In cases where more than one term of office is involved and the Committee of Ministers applies the preceding paragraph, the allocation of the terms of office shall be effected by the drawing of lots by the Secretary General, immediately after the election."
2. There are thus two changes to the rules governing the election of CPT members by the Committee of Ministers, namely:
Firstly, from 1 March 2002, CPT members may be re-elected twice by the Committee of Ministers, instead of just once, as has been the case up to now. As a result, CPT members may in future have three terms totalling twelve years, instead of the eight that have hitherto applied. The aim of this change is to ensure a certain continuity of experience of the CPT's particular activities.
The implementation of this change does not require any further decision on the Committee of Ministers' part.
Secondly, the new paragraph 4 of Article 5 establishes a system for renewing half the membership of the CPT every two years, to ensure a balanced renewal of the members of the Committee. To achieve this, before electing CPT members the Committee of Ministers may decide that one or more terms of office of members to be elected will be for a period other than four years, though this period cannot be more than six or less than two years 2 . This procedure may be applied to any election from 1 March 2002 on. However, it does not affect the current terms of office of existing members of the CPT, or those of members to be elected before 1 March 2002.
The Committee of Ministers must decide on the modalities of the implementation of this new system.
3. Given the wide diversity of expiry dates of the current CPT members' terms of office (see Appendix I, which shows the list of members by order of precedence), the new system of biennial renewal, by half, of the membership of the CPT, as envisaged in the new paragraph 4 of Article 5 of the Convention, can only be implemented gradually over several years. Analysis of the different expiry dates of the terms of office shows that it would be advisable for the Committee of Ministers to divide the members into two groups ("A" and "B"), based on the dates 19 December 2005 and 19 December 2007. By choosing these dates, the Committee of Ministers would ensure that the members to whom the provisions of the new Article 5, paragraph 4, applied would have terms of office of between three and five years, thus restricting to a maximum the difference between these terms and CPT members' normal term of office (which is four years).
4. Group A, based on 19 December 2005 and subsequent four year periods (19 December 2009, 19 December 2013, etc.), would comprise the following 21 CPT members:
- the five current members whose terms of office expire in 2002, that is the members elected in respect of Croatia, Germany, Moldova, Slovenia and Ukraine;
- the nine current members whose terms of office expire in 2005, that is the members elected in respect of Austria, Bulgaria, Denmark, Georgia, Hungary, Luxembourg, the Netherlands, Switzerland and the United Kingdom;
- the two members whose election is scheduled for 30 January 2002, in respect of Estonia and Turkey (whose terms of office will expire on 29 January 2006);
- the members elected to the currently vacant seats in respect of France, Liechtenstein, Norway, Spain and Sweden.
- the member elected/re-elected in respect of Croatia from 5 June 2002 would be allocated a term of office of 3 years, 6 months and 15 days (until 19 December 2005) 3 ;
- the member elected/re-elected in respect of Austria from 4 October 2005 would be allocated a term of office of 4 years, 2 months and 16 days (until 19 December 2009)3;
- the members elected/re-elected in respect of Estonia and Turkey from 30 January 2006 would be allocated terms of office of 3 years, 10 months and 20 days (until 19 December 2009)3;
- the members elected to the currently vacant seats in respect of France, Liechtenstein, Norway, Spain and Sweden would be allocated terms of office of more than 3 years (until 19 December 2005), so long as they were elected before 19 December 2002.
5. Group B, based on 19 December 2007 and subsequent four year periods (19 December 2011, 19 December 2015, etc.), would comprise the following 20 CPT members:
- the eleven current members whose terms of office expire in 2003, that is the members elected in respect of Albania, Cyprus, Finland, Ireland, Poland, Portugal, Romania, the Russian Federation, San Marino, the Slovak Republic and "the former Yugoslav Republic of Macedonia";
- the nine current members whose terms of office expire in 2004, that is the members elected in respect of Andorra, Belgium, the Czech Republic, Greece, Iceland, Italy, Latvia, Lithuania and Malta.
- the member elected/re-elected in respect of Albania from 29 July 2003 would be allocated a term of office of 4 years, 4 months and 21 days (until 19 December 2007) 4 ;
- the member elected/re-elected in respect of Andorra from 31 March 2004 would be allocated a term of office of 3 years, 8 months and 19 days (until 19 December 2007)4.
6. In the case of CPT members elected in the future in respect of new Parties to the Convention (new Council of Europe member States that have ratified the Convention and non-member States that have acceded to the Convention following an invitation by the Committee of Ministers), the Committee of Ministers would allocate them on a case by case basis to one or other of the two groups of members, A and B, having regard to the objective referred to in the new Article 5, paragraph 4.
7. Consideration must also be given to the possible early departure of CPT members. Unlike judges of the European Court of Human Rights, a new CPT member elected to replace a member whose term of office has not expired does not complete his predecessor's term of office 5 .
It is important to ensure that the composition of the two groups formed for election purposes is not eroded over time as a result of members' premature departure. The Committee of Ministers can avoid such an eventuality by making use of the flexibility offered by the new Article 5, paragraph 4 of the Convention, that is by granting the member elected to replace a member who departs early a term of office of other than four years. In that way, the Committee of Ministers could ensure that the expiry date of the new member's term coincided with that of the other members of the group to which the replaced member had belonged.
Similarly, the flexibility offered by the new Article 5, paragraph 4 would enable the Committee of Ministers to retain intact the composition of the groups in cases where a seat was left vacant for a certain time, because of delays in forwarding candidate lists to the Committee.
8. The dividing up between the two above-mentioned groups of the members elected in respect of the existing 41 Parties to the Convention will not entail the drawing of lots, pursuant to Article 5, paragraph 5. Such a procedure would have been necessary if more than half of the CPT members had had the same term of office expiry dates or ones very close together (thereby necessitating the allocation of different terms of office in order to establish the two groups for election at two year intervals). This was the case when Protocol n° 2 was being drawn up but is no longer the case.
With the approach proposed in this memorandum, the two groups would gradually be formed via elections concerning either a single member or small groups of two to three members who would be allocated terms of office of the same length. The question of allocating different terms of office at an election will therefore not arise.
Nevertheless, it might be necessary in the future to have recourse to the procedure of drawing lots, for example if, following further ratifications of the Convention, two or more CPT members were elected at the same time in respect of new Parties and different terms of office had to be allocated to maintain the balance of the composition of the two groups.
Members of the CPT listed in order of precedence
(as at 16 January 2002) *