Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 7

11-18-2010

The Importance of Dialogue and Cooperation in
Prison Oversight
Silvia Casale

Recommended Citation
Silvia Casale, The Importance of Dialogue and Cooperation in Prison Oversight, 30 Pace L. Rev. 1490
(2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/7
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact rracelis@pace.edu.

The Importance of Dialogue and
Cooperation in Prison Oversight
Dr. Silvia Casale*
Like other participants who came from Europe to
participate in the international conference in Austin, Texas, I
was, as I still am, keen to learn more about the different
correctional systems in the United States of America and to
understand the arrangements for oversight in the prisons field.
From the European perspective, oversight of how people are
treated in custody was of special interest at that time, as the
entry into force of the Optional Protocol to the United Nations
Convention against Torture (OPCAT)1 was imminent.2 Now
the Subcommittee on Prevention of Torture (SPT), the new
international mechanism established as a result of the entry
into force of the OPCAT, has been working for two and a half
years.3 It represents a new generation of UN treaty bodies,
* This essay is an updated version of a presentation at the international
conference “Opening a Closed World” held in 2006 at the University of Texas
and organized by Professors Michele Deitch and Michael Mushlin. At that
time, Dr. Silvia Casale was President of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT); subsequently she became the first President of the United Nations
Subcommittee on Prevention of Torture and Other Cruel Inhuman or
Degrading Treatment or Punishment (SPT).
1. Optional Protocol to the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment, G.A. Res. 57/199, U.N.
Doc. A/RES/57/199 (Dec. 18, 2002) [hereinafter OPCAT], available at
http://www2.ohchr.org/english/law/cat-one.htm. The text is also available in
the other five official languages of the UN: Spanish, French, Russian, Arabic
and Chinese. At the time of the conference, there were 50 signatories and 18
ratifications; thus, only two more ratifications were needed for the OPCAT to
enter into force.
2. The entry into force occurred on 22 June 2006, after twenty states
became party to the Protocol.
3. The SPT started operating in February 2007. U.N. Comm. Against
Torture, Sub-Comm. on Prevention of Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, First Annual Report of the
Subcommittee on Prevention of Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment, ¶ 3, U.N. Doc. CAT/C/40/2 (May 14,
2008), available at www2.ohchr.org/english/bodies/cat/opcat/annual.htm (for
English, follow “E” hyperlink).

1490

1

2010]

DIALOGUE AND COOPERATION

1491

since its focus is on work in the field along with the national
preventive mechanisms (NPMs), which all the ratifying states
are obliged to maintain, designate or establish.4
The CPT has been among those observing how the new
international mechanism develops and how each state party is
setting about establishing or maintaining independent
preventive mechanisms at the national (and/or local) level. The
CPT owes its own existence to the realisation in the 1980s that
the time was not yet right then for a global oversight
mechanism and to the decision of the European states to
develop instead their own regional preventive mechanism—the
CPT.5 Since the SPT began its work, it has been in close
contact with the CPT through meetings and joint membership.6
The Optional Protocol encourages the SPT to consult and
coordinate with regional treaty bodies to avoid duplication and
both the SPT and the CPT have made efforts to cooperate with
one another for the common goal of preventing the illtreatment of all persons deprived of liberty.7
This essay draws upon the long experience and practice of
the CPT, with some references to the emerging practice of the
SPT, and proceeds from the perspective of a practitioner who
has worked in both treaty bodies. As the CPT and SPT carry
4. This is in accordance with Articles 3 and 17 of the OPCAT.
5. This is in accordance with the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(ECPT), adopted in 1987 by the Council of Europe. For the official text of the
ECPT in English, see Council of Europe, European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment,
www.cpt.coe.int/en/documents/ecpt.htm (last visited Feb. 6, 2010). The text
is also available in the other official languages of the Council of Europe,
namely French, and in twenty-one other languages spoken in Europe.
6. Two of the members of the SPT are also members of the CPT, while
another SPT member is a former member of the CPT. The first SPT member
from Spain was also a former CPT member. For the current membership of
the SPT, see Subcommittee on Prevention of Torture, Office of the United
Nations
High
Commissioner
for
Human
Rights,
Membership,
www2.ohchr.org/english/bodies/cat/opcat/membership.htm (last visited Feb.
2, 2010).
7. See, e.g., U.N. Comm. Against Torture, Sub-Comm. on Prevention of
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
Second Annual Report of the Subcommittee on Prevention of Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 54, U.N.
Doc. CAT/C/42/2 (Apr. 7, 2009) [hereinafter Second Annual Report], available
at www2.ohchr.org/english/bodies/cat/opcat/annual.htm (for English, follow
“E” hyperlink).

http://digitalcommons.pace.edu/plr/vol30/iss5/7

2

1492

PACE LAW REVIEW

[Vol. 30:5

out visits to prevent torture and other forms of ill-treatment of
people deprived of liberty, their mandate extends to many
different settings where people are or may be deprived of
liberty.8 The specific focus on prisons in this essay reflects the
subject matter of the international conference; however, it
should be noted that the discussion includes pre-trial
detention, since, in many prisons visited by the CPT and SPT,
there are mixed custodial populations of sentenced prisoners
and people on remand.
It should also be emphasized at the outset that what the
public commonly understands as torture—severe ill-treatment
of people deprived of liberty for the purpose of extracting
information or a confession—tends to be encountered by the
SPT and the CPT predominantly in the context of
investigations of offences and, therefore, relates primarily to
the behaviour of the police and other security forces involved in
identifying suspects and clearing up crimes. This by no means
reflects the scope of the concept of torture, as legally defined,
nor the broad scope of the preventive mandates of the SPT or
the CPT.
In the European common legal space,9 torture is defined in
the case law of the court, which has judged that, under certain
circumstances, extremely poor prison conditions amount to
torture.10 At the global level, UN treaty bodies and special
procedures, such as the UN Committee against Torture, the
Human Rights Committee and the Special Rapporteur on
Torture, have contributed to an international understanding of
8. These settings include police stations and other police facilities, pretrial detention facilities (jails), centres for persons held under immigration
legislation, military detention facilities, psychiatric institutions and social
care homes.
9. “European common legal space” refers to the region of forty-seven
European states in which the European Convention on Human Rights
(ECHR) applies and the European Court of Human Rights (ECtHR) has
jurisdiction.
10. See Kalashnikov v. Russia (No. 47095/99) 2001-XI Eur. Ct. H.R.
(extracts). It is noteworthy that in this case the court cited examples of
prison conditions from CPT reports on visits to the Russian Federation. The
decision is available on the European Court of Human Right’s webpage.
European Court of Human Rights, Case-Law, http://www.echr.coe.int/
ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/ (last visited Feb. 2,
2010) (follow “HUDOC” hyperlink, enter “47095/99” in the “Application
Number” field, click “Search” hyperlink, follow “CASE OF KALASHNIKOV
V. RUSSIA” hyperlink).

3

2010]

DIALOGUE AND COOPERATION

1493

torture, as encompassing not only acts that cause physical pain
but also acts that cause mental suffering to the victim; in
addition, prolonged solitary confinement of a detained or
imprisoned person may constitute torture, as may corporal
punishment.11
In prisons, although both the CPT and the SPT may
encounter examples of physical or mental abuse of prisoners by
individual or groups of staff, more frequently the ill-treatment
encountered relates to poor conditions, including overcrowded
accommodation and lack of time and activities out of cell, or
other shortcomings in the system. Staff may themselves be
keen to point out these organisational failings, since they are
often frustrated in their work by these inhibiting factors. In
prisons, CPT and SPT oversight tends, therefore, to centre on
the gap between policy and practice or the lack of capacity
(human and other resources) leading to systemic shortcomings.
This essay discusses the use of dialogue and cooperation in
oversight of prisons. The Conventions establishing the CPT12
and OPCAT,13 which reflect many of the same provisions as the
ECPT, both envisage cooperation as an essential element in the
approach of visiting bodies to the prevention of torture and
other ill-treatment.
As in the other custodial locations visited, the CPT and
SPT mandates in prisons involve preventive oversight. They
look forward, concentrating not so much on exposing
shortcomings in the past as on identifying future possibilities:
possibilities for improvement and also risks of deterioration.
Prison systems and prison practices are generally not noted for
rapid change, although past experience of slippage indicates
that sometimes a prison can go rather rapidly downhill.
The concern of the CPT and SPT is that systematic
safeguards should be in place: legislative provisions
11. See Office of the High Comm’r for Human Rights, General Comment
20 of the Human Rights Committee (CCPR) on the Prohibition of Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment in Article 7 of
the International Covenant on Civil and Political Rights (ICCPR) (Mar. 10,
1992), available at www.unhchr.ch/tbs/doc.nsf/(Symbol)/6924291970754969
c12563ed004c8ae5.
12. Article 3 of the European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (Council of Europe,
1987) [hereinafter ECPT].
13. Article 2(4) of the OPCAT.

http://digitalcommons.pace.edu/plr/vol30/iss5/7

4

1494

PACE LAW REVIEW

[Vol. 30:5

guaranteeing the human rights of prisoners; regulations
establishing standards for conditions, programmes and
services; procedural safeguards; codes of conduct; rules
concerning the areas of potentially greatest risk such as
security restrictions, the disciplinary process, the use of force
and special means, segregation and isolation; and, last but not
least, the mechanisms for oversight, both internal and
external.
Our dialogue and cooperation happens at many levels—
with government ministers, prison policy makers, directors of
prison systems, prison managers, prison staff and with
monitoring bodies—and begins with the recognition that every
prison we visit and every staff team we meet is at a different
starting point in the process of change and faces a unique
combination of challenges, not least among which are the
individuals in prison. The dialogue about prevention is a longterm on-going enterprise, continuing from one visit to the next,
with written reports, responses and reactions, with
correspondence and meetings with the authorities and further
visits to follow-up on particular issues to facilitate the next
steps forward.
In order for the cooperative dialogue to work, it is
important to build mutual confidence. Those we meet might
believe that we are ignorant interlopers with a special axe to
grind and perhaps expecting to find abuse around every corner
and failing to understand the local context. For treaty bodies
with “torture” in their title, it is important to overcome initial
misgivings and misconceptions. Under the ECPT and the
OPCAT respectively, the CPT and SPT are granted unique
powers of access to all places involving deprivation of liberty,14
to move freely inside them, to speak in private with persons
held there and to have access to any information the CPT
deems necessary in order to carry out its mandate.15 This
represents a powerful and sometimes intrusive mandate,
exercised by the CPT in forty-seven European countries16 and

14. Article 2 of the ECPT and Article 4 of the OPCAT.
15. Article 8 of the ECPT and Articles 12 and 14 of the OPCAT.
16. All the member states of the Council of Europe, which includes the
twenty-seven states of the European Union plus another twenty states
including the Russian Federation and Turkey.

5

2010]

DIALOGUE AND COOPERATION

1495

by the SPT in forty-nine countries across the world.17
For oversight to be accepted, it is important to
demonstrate that we are neutral observers with no hidden
agenda, that we do have relevant expertise, experience and
knowledge, that we have studied carefully the legislative and
internal regulatory framework within which prisons in a
particular jurisdiction operate and, perhaps most importantly,
that we have empirical experience of custodial settings—that
the sounds and the sights and the smells of a prison have
meaning for us.
I do not refer merely to the smell of fresh paint, although
of course, when a prison sees a CPT or SPT delegation coming,
there may be a scramble to put on a good appearance. We do
smell a lot of fresh paint, but that is part of the positive
preventive effect: at least a CPT or SPT visit means that the
prison may be painted.
However, if relations with our
interlocutors were to remain at the level of the fine façade, this
would be a wasted opportunity. It is important to find a way
past the superficial and to get down to brass tacks.
I recall being told by one prison director18 that the CPT
delegation was quite mistaken when we pointed out that the
living areas in the prison were not adequately heated. Having
observed staff wearing double pullovers and prisoners huddling
for warmth, while our own fingers grew stiff with cold as we
worked, we invited him to see for himself. When he put on his
overcoat to come with us, he rather proved our point.
Moreover, our equipment for measuring ambient temperature
told its own story. Then we got down to discussing the roots of
the problem and it became apparent that the allowance for fuel
set by the central authorities was woefully inadequate. Later,
after an urgent recommendation from the CPT, the fuel
allowance was increased. The important point arising from
this example is that identifying problems is not an exercise in
laying blame. It is the necessary first step in the process of
finding solutions and encouraging change.
One factor that helps the initial phases of our work is the
17. There are currently twenty-six European states parties, twelve Latin
American, six African, six from the Asia Pacific region and one Middle
Eastern state party.
18. As the work of the CPT and SPT is bound by the rule of
confidentiality, the examples given in this essay will not be identified.

http://digitalcommons.pace.edu/plr/vol30/iss5/7

6

1496

PACE LAW REVIEW

[Vol. 30:5

principle of strict confidentiality enshrined in the ECPT19 and
the OPCAT.20 In its twenty years of operation, that strict
confidentiality has never been breached by the CPT. Prison
personnel can rely on that fact, and the knowledge that the
discussions will remain confidential can have a liberating
effect. So too can the realisation that the CPT can be an
important ally for prison personnel who are striving, often
against the odds, to run a safe and decent prison. It may
become clear that the problems encountered in a prison derive,
at least in part, from staff shortages or lack of staff training,
from budget cuts even at a time when the prisoner population
is increasing, and from policies which fail to take sufficient
account of the situation on the ground or create more
paperwork rather than better practice.
If this is the case, we will point it out to the authorities
and recommend to the central administration the changes
needed to improve the situation. This is part of our face-to-face
dialogue with the central authorities. When we cite problems
observed in detail on the spot, we do not do so merely for the
sake of criticising; we give detailed concrete examples in order
to demonstrate that we understand the problems on the
ground. Sometimes this catches the authorities unaware. At
times, the initial reaction may be defensive; it may be, quite
understandably, a matter of not wanting to lose face. These
reactions are natural; nobody really enjoys criticism, even
when it is framed in a constructive way. However, it is
important to establish a baseline of agreed facts in order to
focus on what can be done to improve the situation and what
safeguards need to be put in place to prevent a recurrence of
the problems.
The confidentiality of the discussions enables everyone to
be more frank, without fear that what is said will be reported.
On that basis, it is possible to reach some kind of constructive
dialogue with all but the most entrenched officials. It is very
rare, in prisons, that we encounter someone who is in total
denial that there is anything wrong at all. Most managers and
staff know that in the complex world of prison work—arguably
one of the most difficult and demanding of all the public

19. Article 11 of the ECPT.
20. Article 2(3) of the OPCAT.

7

2010]

DIALOGUE AND COOPERATION

1497

services—there is always something that can be improved.
Even the most entrenched individuals want a better system,
although there may be disagreement about the best way to
ensure it. Preventive oversight can only really work if those
who remain after the visiting oversight team has departed are
persuaded that change is necessary and is to be embraced,
however cautiously at first, and with whatever natural
misgivings.
As in all closed systems, it is easy for attitudes and
behaviours to become entrenched; there may be nobody with a
different perspective to challenge traditional ways of treating
prisoners. It is now rare for the CPT to find prisons in which
prisoners are expected to stand, turn, bow their heads and face
the wall when officials approach. It has taken time to reduce
the prevalence of this custom, formerly pervasive in many
European prison systems.
The face-to-face dialogue may include difficult moments; it
is necessary to tell hard truths from time to time, but there are
also moments of humour and of cordial agreement. Often we
have a sense that prison managers have little or no opportunity
to voice their operational concerns and that they are not used
to being listened to when they describe the difficulties they and
their staff face from day to day. A central part of the
cooperative work of the CPT and the SPT is to listen carefully
to interlocutors—to what is expressed and what is left unsaid.
Hearing from people with very different perspectives—policy
makers, prison managers, staff on the units, and prisoners—a
visiting delegation receives a complex mix of messages to
complement its observations.
Analysing the detailed information and observations
drawn from and cross-checked among many sources, each
visiting
delegation
formulates
its
findings
and
recommendations for improvement—at first given orally at the
closing stage of each visit as preliminary feedback and then
developed in much greater detail in writing after the visit. The
authorities—in the case of prisons, usually the Ministry of
Justice and the correctional administration—respond to the
detailed written report which is adopted by the CPT or SPT
after each visit; in their response they are to indicate the
measures
taken,
or
planned,
to
implement
the

http://digitalcommons.pace.edu/plr/vol30/iss5/7

8

1498

PACE LAW REVIEW

[Vol. 30:5

recommendations.21 The central authorities will often consult
the local institutions visited in order to address the comments
and recommendations made by the CPT or SPT. In turn, the
CPT or SPT will consider the responses and will reply, asking
for clarification of certain points and for further information
where there are omissions.
Thus the on-going dialogue
continues until the next meeting.
Although CPT and SPT visit reports are confidential in the
first instance, there are provisions in both the ECPT and the
OPCAT for the state to approve publication.22 In practice it is
now the norm for CPT reports and the responses by
governments to be published at the request of the states.23
Although the SPT has so far visited only seven states and
presented six visit reports, already two states—Sweden and the
Maldives—have requested publication; it is to be hoped that
this marks the beginning of a trend similar to that experienced
in the European region. Publication of the reports and
responses is an important indicator of the cooperative relations
between the CPT or SPT and the states parties. It is also a
measure of the confidence that exists between the CPT or SPT
and their interlocutors.
Publication allows a wider cooperation with other bodies.
Interested organisations working in the field will read the
findings of the CPT and SPT and the action reported in the
response. In some cases, a non-governmental organisation
(NGO) providing services in the prison field may take the
opportunity to offer assistance to prisons in the process of
implementing the recommendations, or an NGO focusing on
advocacy work may check the situation in a particular prison
and will report if the change indicated in the government’s
response has not fully materialised or if there has been
slippage. That, in turn, enables the CPT and SPT to follow up
on the situation by asking the authorities for an explanation or
by revisiting, if the situation warrants a follow-up visit.

21. Cf. Articles 1 and 10 of the ECPT and Article 16 of the OPCAT.
22. Article 11(2) of the ECPT and Article 16 (2) of the OPCAT.
23. The one exception is the case of the Russian Federation. For all
published materials of the CPT, including CPT visit reports, CPT General
Reports, the CPT standards, the latest press releases and the CPT database,
see CPT Home (European Committee for the Prevention of Torture),
www.cpt.coe.int (last visited Feb. 2, 2010).

9

2010]

DIALOGUE AND COOPERATION

1499

The positive relations forged with those who have
responsibility for prisons rests in no small part on a common
interest in, and shared sense of, what prisons should be like
and could be like. In case this sounds too idyllic, I would like to
recall that the CPT is working with forty-seven sovereign
states, encompassing the countries of Western, Central and
Eastern Europe, including the Russian Federation and most of
the countries which, not so very long ago, were part of the
Soviet Union, and all the countries in the Balkan region. The
CPT has worked with the prison systems of all these countries
on the often arduous journey away from the legacy of the past.
Now the SPT is embarking on another challenging journey—in
Africa, Latin America, the countries of the Asia Pacific region,
the Middle East and Europe.
Over time, there has developed a set of common values
concerning basic human rights among the forty-seven member
states of the Council of Europe. These are rooted in the
European Convention on Human Rights (ECHR) and are
reflected in the evolving case law of the European Court of
Human Rights and the treaties and other instruments deriving
from the work of the Council of Europe. This body of human
rights jurisprudence includes materials specifically relating to
prisoners, notably the revised European Prison Rules (EPRs).24
The EPRs constitute a body of principles and standards for
custodial institutions, developed by consensus, through the
work of experts designated by the Council of Europe, in
consultation with all the prison services of Europe and in close
co-operation with the CPT. Consequently, there is a high
degree of consonance between the EPRs and the standards of
the CPT. This body of principles is an important backdrop for
the cooperative dialogue between member states and the CPT,
not least because of the clear statement in the EPRs of
fundamental principles:
1. All persons deprived of their liberty shall be
24. COMM. OF MINISTERS, COUNCIL OF EUROPE, RECOMMENDATION
REC(2006)2 OF THE COMMITTEE OF MINISTERS TO MEMBER STATES ON THE
EUROPEAN
PRISON
RULES
(2006),
available
at
https://wcd.coe.int/ViewDoc.jsp?id=955747 (“Adopted by the Committee of
Ministers on 11 January 2006 at the 952nd meeting of the Ministers’
Deputies.”).

http://digitalcommons.pace.edu/plr/vol30/iss5/7

10

1500

PACE LAW REVIEW

[Vol. 30:5

treated with respect for their human rights.
2. Persons deprived of their liberty retain all
rights that are not lawfully taken away by
the decision sentencing them or remanding
them in custody.
3. Restrictions placed on persons deprived of
their liberty shall be the minimum necessary
and proportionate to the legitimate objective
for which they are imposed.
4. Prison conditions that infringe prisoners’
human rights are not justified by lack of
resources.
5. Life in prisons shall approximate as closely as
possible the positive aspects of life in the
community.
6. All detention shall be managed so as to
facilitate the reintegration into free society of
persons who have been deprived of their
liberty.
7. Co-operation with outside social services and
as far as possible the involvement of civil
society with aspects of prison life shall be
encouraged.
8. Prison staff carry out an important public
service and their recruitment, training and
conditions of work shall enable them to
maintain high standards in their care of
prisoners.
9. All prisons shall be subject to regular
governmental inspection and independent

11

2010]

DIALOGUE AND COOPERATION

1501

monitoring.25
These principles may not be reflected in the reality of
prisons across Europe, but they represent norms to which all
member states are committed by virtue of their adoption of the
EPRs in the Committee of Ministers.26 The EPRs provide
authoritative guidance for the correctional profession as to
what European prisons should be like. Although they are not
binding on states, they are widely accepted within the
European common legal space. The struggle to achieve and
maintain these principles in practice is on-going.
The dialogue and cooperation between the CPT and the
authorities responsible for prisons, at the central, regional and
local levels, is long standing and on-going, whereas the SPT is
at an early stage in the process of developing the dialogue and
cooperation and is hampered by a significant lack of resources
at this crucial early stage in its operations.27 As is the SPT’s
current experience, at the beginning of the relationship with a
new state party, a CPT delegation may have visited prisons
where outside visitors were virtually unknown and where the
notion of a body with the mandate to go anywhere in the prison
and speak in private with any prisoner was startling in its
novelty. Nonetheless, as the CPT visits have borne fruit and
prisons have experienced a greater attention to their problems
from central authorities, including changes in conditions which
have brought benefits to staff as well as prisoners, the initial
doubt and unease have given way to a greater willingness to
cooperate.
A good example of change in prisons can be found in the
Russian Federation.
For years, international nongovernmental organisations campaigned to put an end to the
dark airless prison cells where conditions were ripe for the
spread of infectious diseases such as tuberculosis. The CPT’s
findings and recommendations underscored the urgent need for
this problem to be systematically addressed. At the end of
2002, I was present, as President of the CPT, when the
25. Id.
26. The Committee of Ministers is the decision-making body of the
Council of Europe, consisting of the Foreign Affairs Ministers of all the
member states or their permanent diplomatic representatives.
27. See Second Annual Report, supra note 7, ¶¶ 4-5.

http://digitalcommons.pace.edu/plr/vol30/iss5/7

12

1502

PACE LAW REVIEW

[Vol. 30:5

Minister of Justice announced to prison governors from across
the Russian Federation his decision to remove the shutters
from the windows of all the prison cells. It was a dramatic
move to let in the light, vividly symbolising the effect of
oversight on the closed world of prisons.

13