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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.14 Right of Torture Victims to Adequate Remedy and Reparation

Johanna Lober, Andrea Schuechner

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
19 December 2019
ISBN:
9780198846178

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 31 May 2023

Subject(s):
Torture — Right to effective remedy — Reparations — Treaties, interpretation

(p. 370) Article 14  Right of Torture Victims to Adequate Remedy and Reparation

  1. 1.  Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

  2. 2.  Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

(p. 371) 1.  Introduction

1  Article 14 aims at restoring victims’ dignity and preventing the reoccurrence of acts in contravention of the Convention in the future through the provision of full redress. The right to a remedy and to reparations enshrined in Article 14 is closely interrelated with a number of other provisions of the Convention. Articles 4 to 9, concerned with bringing the perpetrators to justice under criminal law, are linked to reparations in that they provide victims with a sense of satisfaction and justice and contribute to protecting their right to know the truth. Equally, prompt, effective, and impartial investigations into allegations of torture as required by Article 12 constitute a basic remedy, as well as the impartial and effective complaints mechanisms required by Article 13. Full redress can only be obtained if the obligations under Articles 12 and 13 are met. Therefore, a failure of States parties to undertake prompt and impartial investigations whenever reasonable grounds exist that an act of torture or other forms of ill-treatment has been committed also violates Article 14.

2  Although Article 14 speaks of ‘redress’ and ‘compensation’, the contemporary terminology, as laid down in General Comment No 3 of 2012 and the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law refers to the right to redress as comprising the procedural notion of an effective remedy and the substantive notion of reparation.

3  When providing redress, States parties have to adopt a victim-centred, gender-sensitive, and non-discriminatory approach and ensure that victims can participate in judicial or administrative proceedings, and that the outcome of redress procedures is tailored to their specific needs. National legislations must comprise specific provisions on the right to redress for victims of torture and other forms of ill-treatment as well as accessible procedures and mechanisms that guarantee an effective implementation of this right. Full redress includes five forms of reparation: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. The provision of financial compensation as sole measure is insufficient to meet States parties’ obligations under Article 14. States parties must ensure as full rehabilitation as possible to torture victims, including medical and psychological care as well as legal and social services.

2.  Traveaux Préparatoires

2.1  Chronology of Draft Texts

4  Declaration (9 December 1975)1

Article 11

Where it is proved that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation in accordance with national law.

(p. 372) 5  IAPL Draft (15 January 1978)2

Article IV

The Contracting Parties undertake to adopt legislative, judicial, administrative and other measures necessary to give effect to this convention to prevent and suppress torture, and in particular, to ensure that:

  1. (e)  any victim of torture is afforded adequate and proper redress and compensation;

6  Original Swedish Draft (18 January 1978)3

Article 12

Each State Party shall guarantee an enforceable right to compensation to the victim of an act of torture or other cruel, inhuman or degrading treatment or punishment committed by or at the instigation of its public officials. In the event of the death of the victim, his relatives or other successors shall be entitled to enforce this right to compensation.

7  Revised Swedish Draft (19 February 1979)4

Article 14

  1. (1)  Each State Party shall ensure that the victim of an act of torture has an enforceable right to compensation. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.

  2. (2)  Nothing in this Article shall affect any other right to compensation which may exist under national law.

2.2  Analysis of Working Group Discussions

8  Commenting on Article 12 of the draft Swedish Convention,5 Austria considered that the right to compensation should be ‘as comprehensive as possible’6. According to the delegation, in the event of death of the victim an enforceable right of any relatives to compensation with respect to alimony should be limited to cases where the victim was legally obliged to pay such alimony; all other forms of claims for compensation—with the exception of those of a purely personal nature—should be open to his heirs as successors. The United States proposed that the text of Article 12 be redrafted as follows in order to clarify the group of people who may enforce the victim’s right to compensation in the event of his death by substituting ‘heirs, dependants, or successors’ for ‘relatives or other successors’:

Each State Party shall take such measures as may be necessary to assure an enforceable right to compensation to the victim of an act of torture committed by or with the consent or acquiescence of its public officials. In the event of the death of the victim, his heirs, dependants or successors shall be entitled to enforce this right.

(p. 373) The United States further made clear that in their opinion the right to compensation should be limited to victims of torture.7

9  The United Kingdom suggested that the word ‘relatives’ should be replaced by the word ‘dependants’.8 Barbados thought that it should be specified whether the State, public official, or individual is liable to pay compensation.9

10  In the 1980 Working Group, discussions were held on the basis of the revised Swedish draft text.10 Various suggestions were made to rephrase the first sentence of paragraph 1. In order to make it more precise, a representative proposed the insertion of the phrase ‘in its legal system’ after the word ‘ensure’. Several representatives felt that in the special case of victims of acts of torture, there was a need to strengthen their right to compensation. They suggested that the phrase ‘an enforceable right to compensation’ should be replaced by the words ‘an enforceable right to fair and adequate compensation’. According to some speakers, the experience of physicians had shown that there were deep physical and psychological sequelae to torture long after the acts had been perpetrated. One-time monetary compensation might not suffice to erase these sequelae and remedy the damage done. Most representatives agreed with the idea to add the words ‘including the means for his rehabilitation’ after the word ‘compensation’ in paragraph 1 of Article 14.

11  Several representatives stated that they had difficulties with the term ‘rehabilitation’, which they regarded as vague and ambivalent, as, in their view, this term might encompass a variety of meanings of a juridical, sociological, and medical nature. An alternative, suggested by one representative, was to add the words ‘including medical measures required by his physical and mental state of health’. One delegate drew the attention of the Working Group to the term ‘rehabilitation’ as used in GA Resolution 34/154 on the International Year of Disabled Persons of 17 December 1979 and proposed that the word ‘rehabilitation’ should be interpreted in the way that it was understood in that resolution. Several delegates opposed any reference to GA Resolution 34/154 in the text of the Convention for the reason that it was not good legal practice to incorporate a non-binding resolution in an international treaty that imposes binding legal obligations upon States. The Group considered it necessary to put the term ‘rehabilitation’ in square brackets and to revert to it at a later stage of the discussion in order to reach a common understanding. Some representatives felt that there was a need to extend the scope of the provision concerning persons who, in the event of the death of the victim as a result of an act of torture, shall be entitled to compensation. Reference was made to the case of a friend or neighbour helping a tortured person and giving him financial assistance before he died. One delegate proposed that the words ‘or any other person designated by national law’ should be added after the word ‘dependants’.

12  The Working Group agreed that paragraph 2 of Article 14 should be redrafted as follows: ‘Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.’

(p. 374) 13  One delegate who, in the early discussions, had reserved his position on Article 14, subsequently withdrew his reservation. Therefore Article 14 as amended was adopted as follows:

  1. 1.  Each State Party shall ensure in its legal system that the victim of an act of torture be redressed and have an enforceable right to fair and adequate compensation including the means for his [rehabilitation]. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.

  2. 2.  Nothing in this Article shall affect any other right of the victim or other persons to compensation which may exist under national law.

14  It was proposed that a reference be made to Article 14 in the text of Article 16(1) with the effect of extending the scope of Article 14 to include compensation for victims not only of torture but also of cruel, inhuman or degrading treatment or punishment. The proposed text of Article 16(1) with a reference to Article 14 enclosed in square brackets appeared as follows:

Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not constitute torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles [3], 10, 11, 12,13, [14] and [15] shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.11

15  During the 1981 Working Group the discussion on Article 14 was mainly concerned with the word ‘rehabilitation’ between square brackets. The Group decided to qualify that word by adopting the expression ‘for as full rehabilitation as possible’. The Group also decided to place the words ‘dans son système juridique’, in the French text, after the word ‘garantit’. In addition, a proposal by the Netherlands to insert the words ‘committed in any territory under its jurisdiction’ after the word ‘torture’ was adopted by the Group.12 However, this phrase disappeared from the text and neither the travaux nor the commentary provide any insight as to why it was deleted.13

16  The Working Group adopted Article 14, as thus revised, by consensus; it now read as follows:

  1. 1.  Each State Party shall ensure in its legal system that the victim of an act of torture committed in any territory under its jurisdiction be redressed and have an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

  2. 2.  Nothing in this article shall affect any other right of the victim or other persons to compensation which may exist under national law.

17  The Indian delegation asked that reference be made in the report to the reservation concerning Article 14 which it had entered the previous year.

(p. 375) 18  Debate on the scope of the proposed Article 16 and in particular its reference to Article 14 continued in the 1981 Working Group. Some delegates were of the opinion that no reference should be made to Article 14. After discussion, the Working Group decided to retain the reference to Article 14, between square brackets. Article 16(1) and (2) was adopted.

19  The 1982 Working Group considered Article 14, provisionally agreed to in the previous year, and decided to retain it as it stood. One delegation asked that reference be made in the report to the reservation concerning Article 14 which it had entered at the two previous sessions.14

20  As regards the reference to Article 14 in Article 16(1) regarding compensation some speakers, referring to Article 11 of the Declaration, favoured a reference on the grounds that victims of cruel, inhuman or degrading treatment or punishment may have a legitimate claim to compensation. Other representatives did not feel that extension of the scope of their compensation laws to an ill-defined field to include all such treatments would be warranted. Since no consensus could be reached, the Group decided to revert to this question at a later stage.15 No consensus was possible either at the 1983 Working Group.

21  It was not possible during the pre-sessional meetings to the 1984 Working Group to reach agreement on the question of including a reference to Article 14 in Article 16(1). Inclusion was firmly opposed by the delegations of the United Kingdom and the United States. Most non-Western delegations participating in the Working Group had no strong preference for including or excluding a reference to Article 14 in Article 16(1).16 Several delegates expressed themselves in favour of including the reference to Article 14 in Article 16(1) while other speakers opposed the reference, fearing that the concept of cruel, inhuman or degrading treatment was too imprecise as a basis for an enforceable right to compensation and might lead to difficulties of interpretation and possible abuses. While one representative suggested that the Working Group might try again to agree on a definition of this concept, others, who were in favour of including the reference, expressed the opinion that a definition was not necessary and that each country would develop its own case law on this matter. India again asked that reference be made in the report to the general reservation concerning Article 14 which her delegation had entered at the previous session.

22  The representative of Spain proposed the inclusion of references to Articles 3, 14, and 15 in Article 16(1), in order for the mechanism of protection to be in harmony with the title of the Convention itself which included ‘other cruel, inhuman or degrading treatment or punishment’, arguing that if reference to these three Articles was not acceptable to the Working Group, then the second sentence of paragraph 1 should be deleted. One other representative also proposed the deletion of the second sentence. In light of the ensuing discussion and in view of the fact that some of these issues had been debated in the past, the representative of Spain, in a spirit of compromise, withdrew his proposal.

(p. 376) 23  The representative of the USSR, in an effort to help overcome the difficulties that divided the Western delegations, suggested that the obligation of Article 14 would apply to cruel, inhuman or degrading treatment only in the event that such treatment caused its victims material damage and damage to the health of a person.17 In other words, this obligation would not apply to ‘moral damages’. After further consultations, the Chairman-Rapporteur noted that several delegations which had favoured the inclusion of a reference to Article 14 had now indicated that they would not insist on such a reference if it created an obstacle to reaching agreement on draft Article 16. At its eleventh meeting, the Working Group decided to adopt draft Article 16, limiting the reference in the first paragraph to ‘Articles 10, 11, 12 and 13’.

24  The delegations of Canada and Ireland stated that they had not opposed the adoption of Article 16, but that they wished to see registered in the report that their Governments retained a strong preference for including a reference to Article 14 in this Article. In written comments the representative for Canada outlined that his delegation had made considerable concessions in the Working Group, ‘particularly in the matter of compensation for victims of cruel or degrading treatment and that the very definition of torture did not seem to his delegation to go far enough’.18

25  The delegation of the USSR, drawing attention to the fact that Article 16 was the only provision referring to acts of cruel, inhuman or degrading treatment which did not amount to torture, expressed the view that the provision should have been presented in a more detailed way, with a more precise definition, so that the Article would have a stronger effect. To this end the delegation had proposed reproducing the provisions of other instruments which had binding force for States parties.19 The delegation, considering it possible to adopt Article 16 without a reference to Article 14, stated that it would not insist on its proposal. However, it emphasized that, if in the course of the further consideration of Article 16 some delegations again raised the question of the necessity of including a reference to Article 14 in Article 16, it would return to its proposal.20

26  Denmark, referring to its contribution to the UN Voluntary Fund for Victims of Torture, stated that besides financial contributions, it was also necessary to provide medical and social assistance to victims of torture.21

27  In written comments Tonga reserved its final position with respect to States parties ensuring that the victims not only of torture but also of other acts of cruel, inhuman or degrading treatment or punishment obtain redress and have an enforceable right to fair and adequate compensation.22

(p. 377) 2.3  Reservations, Declarations, and Understandings

28  Upon accession to the Convention, Bangladesh made the following declaration in relation to Article 14: ‘The Government of the People’s Republic of Bangladesh will apply article 14 para 1 in consonance with the existing laws and legislation in the country.’

29  The New Zealand Government sought to limit the scope of Article 14 by making a reservation granting sole discretion in awarding compensation to the Attorney-General: ‘The Government of New Zealand reserves the right to award compensation to torture victims referred to in article 14 of the Convention Against Torture only at the discretion of the Attorney-General of New Zealand.’

30  Similarly, the United States made a reservation to Article 14 to limit the scope of its obligations under Article 14. The United States consented to the provisions of Article 14 subject to the understanding that a State party is obligated to provide a private right of action for damages only ‘for those acts of torture committed in territory under the jurisdiction of that State Party’.23

31  With regard to the declaration made by Bangladesh to Article 14, Finland, France, Spain, and Sweden all formally objected to it on separate occasions in 1999. The Governments alleged that the contents of the declaration made by Bangladesh constituted a reservation as it purported to modify the obligations of Bangladesh under Article 14. Further, it was considered by France, Spain, and Sweden that the declaration of Bangladesh was incompatible with the object and purpose of the Convention, as the provisions relating to the right of victims of acts of torture to obtain redress and compensation were essential factors in the fulfilment of commitments made under the Convention. These objections did not preclude the entry into force of the Convention between Bangladesh and Finland, France, Spain, or Sweden. Rather, the Convention remains operative between the States without Bangladesh benefiting from these reservations.

32  The Secretary-General received communications from Germany and the Netherlands in the same year also concerning the declaration of Bangladesh. Both States noted that the declaration more accurately constitutes a reservation of a general nature which sought to limit the responsibilities of Bangladesh under Article 14. Both Germany and the Netherlands alleged that such a reservation raised doubts as to the full commitment of Bangladesh to the object and purpose of the Convention. Consequently, Germany and the Netherlands also objected to the declaration made by Bangladesh.

33  Upon ratification of the Convention on 14 March 2016, the Republic of Fiji made a reservation declaring that it recognized Article 14 ‘only to the extent that the right to award compensation to victims of an act of torture shall be subject to the determination of a Court of law’.

(p. 378) 3.  Issues of Interpretation

3.1  Scope of Application

3.1.1  The Conceptual Evolution of the Terms

34  The meaning of the terms redress, compensation, and rehabilitation has considerably evolved in international law and practice with regard to victims of gross human rights violations in general and victims of torture in particular since the drafting time of the Convention. While Article 11 of the 1975 Declaration24 and the IAPL draft25 used the terms ‘redress’ and ‘compensation’, the original Swedish draft used only ‘compensation’.26 During the Working Group discussions, many delegations stressed that the right to compensation should be ‘as comprehensive as possible’. In the course of the discussions, the right to ‘fair and adequate’ compensation was added, and since ‘one-time monetary compensation might not suffice’, it was agreed to add the words ‘including the means for as full rehabilitation as possible’. The participants of the Working Group underlined that rehabilitation should be understood as to encompass various measures, including social and medical assistance.

35  In its practice up to 2005, the Committee followed the drafters’ intention to expand the right of torture victims to an adequate remedy and reparations beyond monetary forms of compensation both in its State reporting and individual complaints procedures. In one of the leading cases in this respect, Guridi v Spain, the victim had been tortured by three members of the Spanish Civil Guard in 1992. Although a Spanish criminal court had in 1997 found all three of them guilty and sentenced them to more than four years imprisonment and to pay compensation of 500,000 pesetas to the complainant, they were later pardoned by the Government and the King. The Committee found a violation not only of Articles 2 and 4, but also of Article 14 in spite of the fact that the Civil Guards had paid the compensation to the victim. It justified this holding by considering that ‘compensation should cover all the damages suffered by the victim, which includes, among other measures, restitution, compensation, and rehabilitation of the victim, as well as measures to guarantee the non-repetition of the violations, always bearing in mind the circumstances of each case’.27

36  While not explicitly referenced in its deliberations in the Guridi case, the terminology used by the Committee broadly reflects the concepts developed in the UN Basic Principles, which were adopted on 16 December 2005 by the General Assembly after many years of drafting in the Sub-Commission and in the Commission.28 The Basic Principles have since been recognized as the general conceptual and legal framework for interpreting the right of victims of torture to an effective remedy and reparations. They lay out a comprehensive concept of ‘reparation’, which includes the five forms of (p. 379) reparation, namely restitution, compensation, rehabilitation, satisfaction as well as guarantees of non-repetition.

37  In 2012, when formulating General Comment No. 3 on the implementation of Article 14, the Committee seized the opportunity to elaborate on its contemporary understanding of the terms used in the Convention. It considered that the term ‘redress’ within the scope of Article 14 encompasses the procedural concept of an ‘effective remedy’ and the substantive concept of ‘reparations’.29 The Committee further recognized that the five forms of ‘reparation’ outlined in the Basic Principles serve as framework for determining the measures required under Article 14 to provide full and effective redress.30 In relation to the procedural aspect of the term ‘redress’, General Comment No 3 specifies that in order to guarantee an effective remedy, States parties are under the obligation to enact specific legislation and establish effective and accessible mechanisms capable of determining and awarding redress for victims of torture or other forms of ill-treatment.31

38  The specific legal obligations arising from the substantive and procedural elements of the right to redress are examined further below. At this point, it can be noted that Article 14 protects torture victims’ right to a procedural and a substantive claim for redress. The protection awarded to victims by the Convention follows thus the standards of international law and practice regarding the right of victims of serious human rights violations to an effective remedy and adequate reparation. This alignment has to be welcomed as Article 14, even though it uses different terminology, constitutes a specific manifestation of the right to an effective remedy laid down in Article 2(3) of the Covenant on Civil and Political Rights (CCPR) and similar provisions in regional human rights treaties.32

3.1.2  Personal Scope of Application

3.1.2.1  The Meaning of the Term ‘victim’

39  The conceptual evolution of the terms used in Article 14 has also concerned the personal scope of application, namely the question of who is to be considered a ‘victim’. With the adoption of General Comment No 3, the Committee has laid out a comprehensive definition of the term ‘victim’,33 which is based on the definition contained in the Basic Principles.34 According to the Committee, victims within the meaning of Article 14 are ‘persons who have individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute violations of the Convention.’35

40  An important aspect of this definition is the understanding that there are different types of harm or loss which can be inflicted through acts or omissions in violation of the Convention. As torture can leave both long-term physical injury and no physical traces at all, the recognition of the emotional and psychological dimension of suffering as part of the definition of victim is particularly relevant. Moreover, the inclusion of economic (p. 380) loss and substantial impairments to the exercise of fundamental rights as particular types of harm takes into account the multiple long-term effects of torture and other forms of ill-treatment not only on the mental and physical health of the victim, but also on their social and professional life, their participation in society, and their capacities to earn a living. The consideration of the different types of harm or loss suffered by victims therefore corresponds with the broad reparative approach encompassed by the term redress as outlined above.