Article 8 Filling of Vacancies

If a member of the Subcommittee on Prevention dies or resigns, or for any cause can no longer perform his or her duties, the State Party that nominated the member shall nominate another eligible person possessing the qualifications and meeting the requirements set out in article 5, taking into account the need for a proper balance among the various fields of competence, to serve until the next meeting of the States Parties, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

1 The procedure of filling vacancies following the death, resignation or incapacity of SPT members is based to a large extent on Article 17(6) CAT. This procedure, which differs from Article 34 CCPR, has the disadvantage of giving a certain State party an almost exclusive right to have a national of its choice on the SPT.

2 Text of the Articles which Constitute the Outcome of the First Reading (25 January 1996)¹

Article 5

5.

If a member of the Sub-Committee dies or resigns or for any other cause can no longer perform the member’s Sub-Committee duties, [the Committee against Torture shall, after having consulted the State Party of which the member was a national,] [the State Party which nominated the member shall] appoint another person of the same nationality possessing the qualifications and meeting the requirements set out in article 4 to serve for the remainder of the member’s term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

3 Text of the Articles which Constitute the Outcome of the Second Reading (26 March 1999)²

Article 7

If a member of the Subcommittee dies or resigns or for any other cause can no longer perform the member’s Subcommittee duties, the State Party which nominated the member shall nominate another eligible person possessing the qualifications and meeting the requirements set out in Article 4, taking into account the need for a proper balance among the various fields of competence, to serve until the next meeting of the State Parties, subject to approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

4 During the first four sessions of the Working Group, the issue of how to deal with vacant seats within the SPT was not discussed separately.

5 In the course of the fifth session from 14 to 25 October 1996, the Chairperson of the drafting group presented the considerations on the relevant articles and referred to the outcome of the second reading.³ With respect to the new Article 7, the Chairperson stated that the agreed text had been adopted by the drafting group to be presented to the plenary meeting, despite the different views among some delegations. She explained that they would have preferred to establish a more transparent method of replacing a member of the Sub-Committee who could no longer perform his or her duties before expiry of the term, but that all delegations had finally agreed on the text of Article 7 as contained in Annex I.⁴

6 The proposal presented by the Chairperson-Rapporteur, in January 2002, is almost identical with the 1999 draft and follows very closely the procedures contained in other UN human rights instruments.

7 At its fiftieth meeting on 22 April 2002, the Commission on Human Rights finally adopted the text of the OP submitted by the Chairperson-Rapporteur at the tenth session of the Working Group by twenty-nine votes to ten.⁵

8 Since Article 8 OP largely follows the procedure for the filling of vacancies of the CAT Committee, reference shall be made to the issues discussed in relation to Article 17(6) CAT.⁶ Vacancies may arise if a member of the SPT dies or resigns or can no longer perform his or her duties for any other cause. The term ‘any other cause’ relates to the personal circumstances of a SPT member to be replaced,⁷ eg if a member is seriously ill or refrains from participating in the SPT’s sessions without any proper excuse. There are, however, a few differences in the wording of the articles designed to avoid the situation whereby States have the right simply to appoint one of their own nationals. First, the word ‘appoint’ in Article 17(6) CAT was replaced by ‘nominate’. Second, the nominated candidate must possess the respective qualifications and meet the requirements set out in Article 5 OP, ie independence, impartiality, availability, morality, and a relevant professional experience. Third, States parties shall take into account the ‘need for a proper balance among the various fields of competence’. If, for example, the variety of professions represented was not satisfactory before the resignation of a member, the State party shall take this factor into consideration. For instance, a State party should obviously not nominate another prison manager, if there is a lack of medical experts on the SPT. Finally, the person nominated to fill a vacancy shall not serve for the remainder of the term of his or her predecessor, but only until the next meeting of the States parties. If a member resigns during the first year after his or her election, the successor shall only fill this vacancy until the next biennial meeting of States parties, rather than for the remaining three years, as provided for by Article 17(6) CAT. These changes to the OP definitely improve the method of filling vacancies.

9 Thus far the procedure stipulated in Article 8 OP and specified in Rule 8 has only been applied four times. Due to the fact that Ms Casale (UK) and Mr Torres Boursault (Spain), two of the original ten experts who had been elected members of the SPT, had resigned in 2009, Mr Evans (UK) and Mr Ginés Santidrián (Spain) were appointed in order to fill the vacancies in mid-2009.⁸ After Mr Pross (Germany) and Mr Obrecht (France), who had been elected members of the SPT since 2010, had laid down their duties under the OP, Ms Osterfeld (Germany) and Ms Paulet (France) succeeded to the places vacated in January 2014.

10 All four experts that followed those who had resigned from their duties under the OP earlier had later become elected members of the SPT following the elections that took place past their respective appointments (in autumn 2010, 2012, 2014, and 2016).⁹

11 By referring to Article 5, Article 8 again stipulates the need for a proper balance among the various fields of competence. So far, all outgoing experts had been replaced by experts who more or less show the same professional backgrounds as their predecessors.¹⁰ Thus, the opportunity to increase the non-legal expertise among SPT members was missed also with regard to the filling of vacancies following the procedure set out in Article 8 of the OP.¹¹

Kerstin Buchinger