E/CN.4/1993/26
page 8
is true, the perpetrators will be punished and the victims will be
compensated. The information received, together with the replies by
Governments, enable the Special Rapporteur to draw for the Commission a
picture of the occurrence and the extent of the practice of torture and to
submit to the Commission his conclusions and recommendations. For that reason
it is regrettable that only a minority of the Governments whose comments are
solicited provide the Special Rapporteur with a reply, in spite of the fact
that the Commission has urged Governments which have not yet responded to
communications transmitted to them by the Special Rapporteurs to answer
expeditiously (resolution E/CN.4/1992/32, para. 18).
15.
The Special Rapporteur is also invited "to bear in mind the need to be
able to respond effectively to credible and reliable information that comes
before him." This provision, which is also contained in other thematic
mandates established by the Commission, has led to the so-called urgent appeal
procedure. If anything, this urgent appeal procedure illustrates the
essentially different character of the mandates of the treaty-based bodies and
that of the Special Rapporteur. The latter's function is basically
humanitarian and destined, through the urgent appeals procedure, to avert
potential or ongoing violations of the prohibition of torture and through the
transmittal of alleged violations to enable Governments to expedite the
suppression of torture and the compensation of victims. The instruments of
thematic procedures has been developed by the Commission as a tool in the
struggle against practices which have been outlawed by the international
community and as a means to come to the rescue of potential or real victims of
such outlawed practices. Hence, the emphasis is laid on the element of
"effectiveness" and on the adoption of preventive measures.
16.
The difference in character of the various mandates is also highlighted
if we compare the competence of the Committee against Torture to carry out an
independent inquiry in cases where it has received information about a
systematic practice of torture and to visit the country concerned with the
consent of the Government, with the country visits paid by the Special
Rapporteur. An inquiry by the Committee is an ultimum remedium which will
only be applied when there is overwhelming evidence of torture on a massive
scale and will finally lead to a determination on state responsibility. A
visit by the Special Rapporteur is commendable in all those cases where, on
the basis of the information received, the situation in a country seems to be
problematical and where consultations with the authorities and with
non-governmental groups might lead to a clearer picture and to improvements by
the taking of certain measures. Such a visit for consultative purposes should
be seen much more as falling in the category of advisory services than an
investigative mission provided for in the Convention against Torture. This
seems also to be the opinion of the Commission when it encouraged Governments
to give serious consideration to inviting the Special Rapporteur to visit
their countries so as to enable him to fulfil his mandate more effectively.
The difference in character is also borne out by the fact that the Committee
will carry out its inquiry in confidence, although a summary account of the
proceedings may be included in the Committee's annual report, whereas the
Special Rapporteur immediately submits a report on a country visit to the
Commission.