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:
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 , 10, 11, 12,13,  and  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:
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