Domestication and Implementation Package C The duty to provide redress to victims of torture and...

© The Article 5 Initiative, 2013

Domestication and Implementation Package C

The duty to provide redress to victims of torture and other ill

treatment


Introduction

• This DIP focuses on the broad range of services that the State should provide to victims of torture and other ill treatment, in order to comply with international law

• Main sources:– Article 14 of UNCAT– 50th Guideline of the RIG– CAT General Comment 3 on redress for victims


Key Concepts: Redress, Remedy & Reparations

• State Parties have a duty to effectively allow victims of torture and other ill treatment to seek redress

• Redress comprises of both procedural and substantive parts:– Procedural: Remedies– Substantive: Reparations

• Both victims of torture and other ill treatment should be provided with redress


The right to effective remedy

• The right to a remedy includes: – Legislation – Complaints mechanisms– Investigative bodies– Independent judicial and quasi-judicial institutions– Availability of mechanisms, bodies and institutions


The right to means of reparation

• There are five forms of Reparation :– Restitution– Monetary compensation– Access to rehabilitative services– Measures of satisfaction– Guarantees of non-repetition

• The obligation to provide redress lies primarily on the State Party; this includes the obligation to provide monetary compensation


Procedural obligations on the State

• Adopt legislation recognising an individual and enforceable right to redress to victims of torture and other ill treatment

• The legislation should recognise a comprehensive right to redress, encompassing all five elements outlined above

• Establish effective and accessible mechanisms that provide full redress, and disseminate information about these mechanisms


Making mechanisms for redress accessible

• Some things that are necessary in order to make sure that mechanisms for redress are effectively accessible are the following: – victims must be able to get information on the means of

reparation and on how to access those means– there must be transparency in providing redress – victims and their families should be protected when they file a

complaint so that the perpetrator/s cannot harm them – the State should set up non-discrimination as well as gender- and

child-sensitive programmes when providing reparation– the State should provide adequate training to all personnel who

come into contact with victims, and set up human rights offices within police offices


Substantive obligations on the State

• The State should be able to offer all five forms of redress to victims of torture or other ill treatment:– Restitution– Monetary compensation– Access to rehabilitative services– Measures of satisfaction– Guarantees of non-repetition

• The extent of the measures granted to each victim should be decided on a case-by-case basis


Restitution

• Restitution aims at providing services to the victim that will allow him/her, as far as possible, to return to the state that he/she was in before the acts of torture or other ill treatment occurred

• Examples: restore citizenship, return property, or employment, remove from the place of detention where torture or ill treatment occurred

• Risk of re-victimisation or retaliation when the victim remains in the place of detention where torture or ill treatment occurred – the State must provide the victim with effective protection against retaliation


Monetary compensation

• Fair and adequate monetary compensation, proportional to the harm suffered

• To cover medical and legal expenses, to compensate for the physical and mental damage suffered, etc.

• The obligation lies on the State, unless the perpetrator is identified and can provide such compensation, because the State is responsible for ensuring that its public officials do not commit torture or other ill treatment


Compensation funds

• The State could set up a compensation fund for victims of torture, which could compensate victims and assist NGOs providing rehabilitative services

• The fund should be managed in a fair and transparent manner and should be accessible to victims and to organisations providing rehabilitative services to victims

• The UN manages a Voluntary Fund for Victims of Torture, which provides funding to NGOs providing medical, social, psychological, legal and economic assistance to victims


Rehabilitation

• The aim of rehabilitative measures is to restore, to the maximum extent possible, the dignity of the victim

• Rehabilitative measures are a wide range of services the State provides to victims to allow him/her to be restored with functions he/she possessed before, or provided with new skills

• Rehabilitative services can be of a psychological, medical, social or legal nature

• The State can set up institutions providing such services (hospitals, community centres, etc.), or can fund NGOs that provide such services


Satisfaction

• Satisfaction entails the various judicial and non-judicial measures that will contribute to recognising that torture or other ill treatment occurred.

• Examples: judicial prosecution, search and identification of the bodies, truth and reconciliation commission, public apology from the perpetrator or the State, commemorations, etc.

• The victim’s right to know the truth is a particularly important element of satisfaction for victims of torture or other ill treatment and their families

• These measures are linked to the obligations examined in DIPs A and B


Guarantees of non-repetition

• Broader policy measures aimed at ensuring that acts of torture and other ill treatment don’t happen again in the future

• Examples: reinforce training of security officials, review codes of conduct, strengthen the independence of the judiciary, ensure independent oversight over places of detention, etc.

• These measures were examined in DIP A and B

Domestication and Implementation Package C The duty to provide redress to victims of torture and...

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