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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

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 28 January 2022

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

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.

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.

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

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) 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;

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.

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

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

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.36

41  The definition of the term ‘victim’ also recognizes that victims can suffer from different types of harm not only individually but also collectively. The notion of collective or group harm is particularly relevant in cases of serious or massive human rights violations that cause damages not only to the individual directly affected but to the community as a whole.37 In such contexts, it is important to assess the harm suffered both on the individual and the collective level and ensure meaningful reparation that addresses the different dimensions of harm in an adequate way. In countries undergoing a transitional justice process, reparation policies and programmes are often designed to address collective dimensions of suffering and to reach out to large numbers of victims. While the Committee has recognized the added value of such reparation policies put in place by transitional justice mechanisms, it underlined that they cannot, however, replace the right of the individual victim to an effective judicial remedy, and to an individual assessment of the harm suffered in order to determine adequate reparation measures.38 In the individual complaint procedure, the Committee has not yet had the occasion to consider the award of collective forms of reparations due to the fact that Article 22(1) CAT grants standing in the individual complaints procedure only to individuals but not to groups.39

42  The right to an effective remedy and redress under Article 14 does not only apply to victims of acts in violation of the Convention which can be directly imputed to a State authority or a person acting in official capacity. In line with General Comment No 2, the Committee confirms in General Comment No 3 that the State also bears responsibility for providing access to full and effective redress to victims of acts committed by non-State actors, where the State failed to exercise due diligence to prevent and investigate such acts, and prosecute and punish such non-State actors.40

(p. 381) 3.1.2.2  The Recognition of ‘indirect victims’

43  At the time of the drafting, the notion of victim was limited to those persons directly subject to a violation of the Convention. An important conceptual evolution introduced by the Committee in General Comment No 3 is the broadening of the term ‘victim’ to include ‘affected immediate family members or dependants of the victim as well as persons who have suffered harm in intervening to assist victims or to prevent victimization’.41 The inclusion of both direct and indirect victims reflects the developments in international human rights jurisprudence and recognizes the effects that torture may have on family members and other third persons in a close relationship with the direct victim.42

44  The damages on family members and third persons with a close relationship to the direct victim as a result of acts of torture can take on different forms. In addition to the often traumatizing effects torture leaves not only on the direct victim but on his or her next of kin, family members and dependants may also suffer material and non-material damages when the long-term consequences of torture on the victim affect the social and economic situation of the entire family. In addition, the reactions and attitudes of the authorities vis-à-vis the next of kin of victims of torture, such as threats, denial of access to justice or withholding of information on the whereabouts of the victim, can increase their anguish and distress. This is particularly the case when the authorities fail to carry out effective investigation or otherwise obstruct the efforts of family members to know the truth about the fate of their loved ones.

45  When considering the Committee’s broad concept of the victim in the context of Article 14, the question is whether ‘indirect victims’ can bring reparation claims only (p. 382) on behalf of the direct victim, or also in their own right with a view to the different types of harm and suffering they have endured. In the early Punto Final cases against Argentina submitted by relatives of Argentinian citizens, who were tortured to death by the Argentinian military authorities in 1976, the Committee declared the complaints inadmissible ratione temporis. It observed, however, in a well know obiter dictum that Argentina was ‘morally bound to provide a remedy to victims of torture and to their dependants’.43 In later cases, the Committee accepted standing of close family members to bring complaints on behalf of the victim, such as an elder brother of a Tunisian activist, who allegedly died after being tortured in police detention,44 or the family members and dependants of a Nigerian refugee, who had died while being held in a Canadian immigration holding centre.45

46  In two later cases brought by the parents of the deceased victims, the complainants alleged violations of Article 14 both in relation to the direct victim and in relation to the denial of their own right to redress. In Ristic v Yugoslavia, the Committee accepted the communication of the father of the victim, found violations of Articles 12 and 13, but decided in relation to Article 14 that in the absence of proper criminal investigation, it was not possible to determine whether the rights to compensation of the alleged victim or his family had been violated.46 In Nikolic v Serbia and Montenegro, the Committee accepted the communication of both parents of the victim, who had died in the course of an attempt of the police to arrest him. After having found violations of Articles 12 and 13, the Committee decided to postpone its consideration under Article 14 until receipt of the results of an impartial investigation of the circumstances of the death of the complainants’ son.47 In the Nikolic case, the complainants explicitly considered themselves as ‘indirect victims’ and referred in this respect to the ECtHR judgement in the disappearance case of Kurt v Turkey, where the Court had awarded compensation for the disappeared son’s pain and suffering and the anguish and stress caused to the family of the victim.48 Even though no violation was found in these two cases, the Committee did not in principle reject the compensation claims of the family members under Article 14 in relation to their own suffering.

47  Another question is whether family members can only raise claims to monetary compensation or also request other forms of reparation. This issue was explicitly addressed by the applicant in the case of Djamila Bendib v Algeria concerning the death of (p. 383) the complainant’s son while being held in pre-trial detention by a branch of the Algerian army’s secret service.49 In this case, the mother of the deceased victim gave a detailed account of the inaction of the prosecution services in response to several requests for initiating a criminal investigation into the circumstances of her son’s death, whose body had shown physical signs of severe torture. She had attempted in vain to receive copies of an autopsy and access the results of an internal investigation that had allegedly been carried out by the authorities. Due to the lack of responsiveness by the authorities, the family was without possibility to pursue criminal actions. In relation to Article 14, the complainant argued that by depriving the victim’s family of the opportunity to bring legal action under criminal law, the State party had deprived them of the possibility to obtain compensation.50 In addition, she argued that the obligation of the State to provide reparations was not limited to the provision of monetary compensation for the harm suffered, but that measures guaranteeing the non-repetition of the acts in question should be considered an integral part of the right to redress. Referring to the jurisprudence of the ECtHR and Human Rights Committee, the complainant asserted that the failure to prosecute and punish those responsible for the death of her son constituted a violation of the right of the next of kin of the victim under Article 14.51

48  In its consideration of the merits, the Committee found a violation of Article 14 and referred to States parties’ obligations under the comprehensive reparative concept to guarantee full redress for all types of harm suffered by providing inter alia compensation, restitution, and measures to guarantee non-repetition.52 The Committee did not, however, explicitly distinguish in this respect whether the different types of reparation applied in relation to the victim or also to the complainant in her own right. Nevertheless, in the request for follow-up measures, the Committee not only urged the State party to initiate impartial investigation into the case and ensure that those responsible are brought to justice, but also to provide the family of the deceased with a copy of the autopsy and to ensure that the complainant receives comprehensive and effective reparation.53 The Committee thus confirmed that other than monetary forms of reparation were in this case applicable to the mother of the deceased victim in her own right.

49  In the disappearance case of Colmenarez and Sanchez v Venezuela, the Committee accepted a complaint by the wife and the father of M Guerreo Larez, who had disappeared while serving a prison sentence in the Venezuelan General Penitentiary.54 According to information received by the complainants through unofficial channels, the victim had been tortured, dismembered, and buried by other inmates. In addition to the issues raised by the complainants under Articles 2, 11, and 14, the Committee also considered the case in relation to Article 12 in light of the failure by the authorities to initiate prompt, effective, and impartial investigation almost six years after Mr. Guerrero Larez’s disappearance. It also examined the complaint under Article 16 in relation to the treatment of the complainants by the authorities in their search to ascertain the whereabouts and fate of their husband and son and to obtain justice.55 The Committee found a violation of (p. 384) Article 14 due to the lack of a prompt and impartial investigation, but did not differentiate between the State’s obligation to provide redress to the victim and to the complainants respectively.56 However, it considered that the anguish and distress caused by the enforced disappearance of Mr. Guerrero Larez to the complainants, the indifference of the authorities to their efforts to ascertain his fate, and the refusal to release the bodily remains amounted to a violation of Article 16 of the Convention in relation to the complainants.57 As follow-up measures, the Committee requested the State party, inter alia, to ‘grant compensation and the means for rehabilitation in accordance with the Convention to Mr. Guerrero Larez, if he is still alive, and compensation to the complainants’.58

50  While requesting that compensation be awarded to the complainants, the Committee did not mention other forms of reparation as it has done in the Djamila Bendib case.59 A consistent development of the Committee’s approach on the right to redress for indirect victims in line with the comprehensive reparative concept set out in General Comment No 3 should also encompass other measures in addition to monetary compensation. In particular, family members and other indirect victims should be granted redress in the form of measures to establish the truth, receive justice and satisfaction by means of a full criminal investigation capable of leading to the punishment of the perpetrators, as well as other measures aimed at the non-repetition of torture in the future. Family members and other indirect victims should also be provided with economic and social support schemes to address the impact the acts of torture had on the social environment of the victim.60

3.1.2.3  Rights of Dependants in the Case of the Death of the Victim

51  The broad notion of ‘victim’ developed by the Committee in General Comment No 3 has to be distinguished from the second sentence of Article 14(1), which stipulates that in the case of death of the victim, ‘dependants’ are entitled to compensation. While Article 11 of the 1975 Declaration and the IAPL draft only addressed the right of victims of torture to redress, the original Swedish draft already contained the right to compensation of the relatives or other successors in the case of death of the victim. Various States supported this approach.61 The Austrian delegation proposed to limit the scope of the second sentence of Article 14(1) to compensation claims with respect to alimony in cases were the victim was legally obliged to pay such alimony. According to the delegation, (p. 385) all other forms or compensation in the event of the death of the victim should be open to his or her heirs as successors.62 The US delegation preferred to substitute ‘heirs, dependants, or successors’ for ‘relatives or other successors’, but the agreement on the single word ‘dependants’ is based on a UK proposal.63 During the Working Group’s deliberations in 1980, some representatives felt that there was a need to extend the scope of this 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.64 One delegate proposed that the words ‘or any other person designated by law’ should be added after the word ‘dependants’. Rather than accepting this proposal, the Working Group agreed that a separate paragraph would be added to Article 14 containing a general savings clause.

52  The term ‘dependants’ in the second sentence of Article 14(1) indicates that third persons, in particular children and others who were economically dependent on the victim at the time of his or her death and who may or may not be his or her legal successor, should be entitled to compensation.65 This entitlement is based on the notion of a specific economic loss as direct result of the violation committed against the victim (and thus narrower than the qualification of indirect victim as discussed above). Regional jurisprudence has established some criteria for dependants to receive reparation in the form of compensation, such as the regularity of the financial contribution made by the victim to the dependant, whether the nature of the relationship allowed for the presumption that the payments would have continued and whether the contributions had been based on a financial need of the recipient.66

3.1.3  Interpretation of the Savings Clause in Article 14(2)

53  The savings clause was not included in Article 11 of the 1975 Declaration or in any of the drafts for Article 14. Its origin goes back to concerns of States in the Working Group relating to the second sentence of Article 14(1). In relation to the proposal of the Austrian delegation to limit the right of dependants to compensation to cases where the victim was legally obliged to pay alimony, the Swedish Government proposed in its revised draft a second paragraph reading as follows: ‘Nothing in this Article shall affect any other right to compensation which may exist under national law’. The Working Group agreed that paragraph 2 of Article 14 should be redrafted in the way it was adopted afterwards.

54  It seems clear from the travaux préparatoires that the savings clause was meant to ensure that the specific right of the dependants of a torture victim does not in any way affect other economic claims of the heirs and other legal successors against the victim at the time of his or her death.67 For example, those children who economically depend on their father at the time of his death may have a claim of alimony under domestic law against the heir or legal successor of their father. The main purpose of the savings clause in Article 14(2) is to ensure that no compensation claim under domestic law in relation to the death of the victim shall be affected by a more narrow interpretation of the second sentence in Article 14(1). One example was provided during the discussions in the Working Group.68 If a friend, neighbour, or, we might add, a Torture Rehabilitation Centre, has provided (p. 386) assistance to a torture victim, the fact that these persons or institutions do not fall under the term ‘dependants’ shall not, in any way, restrict their compensation claims against the perpetrator of torture or the respective State and its authorities. Another scope of application of the savings clause in Article 14(2) is the extraterritorial application of the right of torture victims to reparation which will be discussed below.

3.1.4  Applicability of Article 14 to Cruel, Inhuman or Degrading Treatment or Punishment

55  A key question of interpretation in relation to the scope of application of Article 14 is whether the right to a remedy and reparation in the framework of the Convention is limited to victims of torture or extends equally to victims of cruel, inhuman or degrading treatment and punishment (CIDT or other forms of ill-treatment).69 This issue has been discussed controversially since the drafting of the Convention. A literal interpretation of the wording of the first paragraph suggests that Article 14 applies to victims of torture and their dependants exclusively. However, the wording of Article 14 has to be interpreted in light of Article 16, which stipulates States parties’ obligation to prevent forms of ill-treatment other than torture within the meaning of Article 1. The second sentence of Article 16(1) explicitly lists Articles 10 to 13 as provisions likewise applying to acts of CIDT not amounting to torture, but does not refer to Article 14. However, the words ‘in particular’ introducing this list indicate that the enumeration of Articles 10 to 13 may not be exhaustive. The wording of Article 16 therefore leaves both possibilities open.

56  Also the travaux préparatoires are not conclusive as to which interpretation was intended by the drafters. Some States, above all the United States, made clear that in their opinion Article 14 should only apply to victims of torture. Other delegations, above all Spain, Canada, and Ireland, proposed that a reference be made to Article 14 in the text of Article 16(1). In fact, the draft text of Article 16(1) for some time had included an explicit reference to Articles 3, 14, and 15 in square brackets. But in 1984, the Working Group decided to delete the explicit reference to these three provisions, and at the same time to include the words ‘in particular’. In other words, the drafters wished to leave this controversial question open for the Committee to decide.

57  The first case in which the Committee had to decide on the matter, Dzemajl et al v Yugoslavia, concerned the 1995 pogrom against a Roma settlement by some 200 ethnic Montenegrins, with the police watching without interfering.70 The Committee found a violation of Article 16(1) by acquiescence and, in the absence of any serious investigation, also violations of Articles 12 and 13. Concerning the alleged violation of Article 14, the Committee came to the conclusion that the scope of application of Article 14 was limited to torture and did not apply to victims of other forms of ill-treatment. In its line of argument, it noted the lack of an explicit reference to Article 14 amongst the Articles enumerated in the first paragraph of Article 16. The Committee considered, however, that the positive obligation contained in the general obligation of States parties to prevent other forms of ill-treatment not amounting to torture (Article 16(1)) included the obligation to grant redress to the victims of such acts. It was therefore of the view that the State party had violated its obligations under Article 16 by failing to enable the complainants to obtain an effective remedy and reparation.71

(p. 387) 58  The Committee took a different view in General Comment No 2 of 2008, when it stated that the wording ‘in particular’ in Article 16 signals that this reference is not to be limited to those articles, but equally extends to other provisions of the Convention, including Article 14.72 Four years later, however, in General Comment No 3, the Committee does not restate this line of argument, but simply mentions the applicability of the right to a remedy and reparations to all victims of torture and acts of cruel, inhuman and degrading treatment or punishment without specifying how it had arrived at this conclusion.73

59  This view is, however, not followed by the Committee in subsequent decisions in the individual complaints procedure as shown in the case of Sergei Kirsanov v Russia74 of 2014. This case concerned a complaint on inhuman conditions of detention in a temporary confinement ward that amounted to a violation of Article 16.75 Although the complainant in this case was granted compensation, the Committee noted that the award of a symbolic amount of monetary compensation by the civil court was insufficient as the civil court had no jurisdiction to impose any measures on the individuals responsible for the ill-treatment. According to the Committee, the State party had failed to observe its obligations under Article 16 of the Convention by failing to provide the complainant with redress and with fair and adequate compensation.76 In this case, the Committee used its earlier line of argument (see the case of Dzemajl et al v Yugoslavia) by drawing on a violation of the positive obligation to prevent CIDT in the first sentence of Article 16, rather than following the reasoning set forth in the General Comments in favour of the applicability of Article 14 to other forms of ill-treatment below the threshold of torture.

60  Since the Convention as a whole is concerned with prevention, it is the purpose of the second sentence of Article 16(1), as lex specialis, to specify which of the other provisions also apply to CIDT. The reasoning of the Committee is, therefore, problematic as it turns this logic of Article 16 as lex specialis on its head. As the line of reasoning in General Comment No 2 shows, there are other arguments to arrive at the conclusion that the right to a remedy and reparation also applies to other forms of ill-treatment not amounting to torture. Starting from the text of Article 16, the words ‘in particular’ in the second sentence must be given their proper meaning. Looking again into the travaux préparatoires, it was clear that all the provisions relating to the criminal prosecution of the perpetrators of torture (Articles 4 to 9) would only apply to torture in the narrow sense of Article 1. Only the three provisions which were put in square brackets during the deliberations in the Working Group (Articles 3, 14, and 15) were considered controversial. Moreover, Article 14 can be considered as a special manifestation of Article 2(3) CCPR, which grants all victims of a violation of any of the rights contained in the Covenant, including the prohibition of torture and other forms of ill-treatment in Article 7 CCPR, a right to an effective domestic remedy. In light of the fundamental importance of Article 2(3) CCPR for the protection of human rights and its general application to all victims of human rights violations, it is more convincing to argue that victims of other forms of ill-treatment below the threshold of torture equally enjoy the right to a remedy and reparation under Article 14 of the Convention. The words ‘in particular’ in the second sentence of Article 16(1) should thus be interpreted so as to extending the applicability (p. 388) of other Articles than those explicitly enumerated to victims of CIDT, particularly where the protection thereby afforded is in accordance with established international law and practice.

61  It can therefore be concluded that the Committee, while consistently recognizing the right of victims of CIDT to a remedy and reparations, has used different lines of arguments to arrive at this conclusion. Inconsistencies remain between the Committee’s approach adopted in the General Comments and the reasoning followed in the individual complaints procedure as to whether the right of victims of CIDT to a remedy and reparation is based on a positive obligation in Article 16(1) or on the expansion of the scope of application of Article 14 to other forms of ill-treatment. The State reporting procedure shows that in practice the Committee considers regularly whether States parties have fulfilled their obligations to provide full and effective redress under Article 14 both with regard to victims of torture and victims of other forms of ill-treatment.77

3.2  Procedural Obligations

3.2.1  Recognition of Victim Status and Victim Participation in Proceedings

62  The prerequisite for the exercise of the right to a remedy and reparations enshrined in Article 14 is the official recognition of individuals having been subjected to torture as victims through domestic procedures. This is closely linked to the States parties’ obligation to make acts of torture punishable as a criminal offence under national criminal law in accordance with the definition contained in Article 1 of the Convention and the obligations stipulated in Article 4. As the Committee notes in General Comment No 3:

The failure of States parties to enact legislation that clearly incorporates their obligations under the Convention and criminalizes torture and ill-treatment, and the resulting absences of torture and ill-treatment as criminal offences, obstructs the victim’s capacity to access and enjoy his or her rights guaranteed under article 14.78

63  According to the Committee, the recognition of victim status should not be made dependent on whether the perpetrator of the violation has been identified, apprehended, prosecuted, or convicted.79 Rather, redress procedures must be initiated ex officio, when there are reasonable grounds to believe that torture or other forms of ill-treatment has taken place, even in the absence of a complaint.80 The responsible authorities should (p. 389) therefore act on their own initiative (proprio motu) in order to identify potential victims where serious human rights violations are known to have occurred. For example, the Committee criticized the slowness of the proceedings and the limited results of investigations into political crimes known to have been committed during the communist era in Romania, which were not followed by the prompt identification of the victims and the provision of redress.81

64  In the State reporting procedure, the Committee has also emphasized the importance of the State affording official recognition to survivors of torture as victims. For example, in connection with the well-documented torture and other forms of ill-treatment that occurred during the 1992–95 conflict in the former Yugoslavia, the Committee expressed concerns regarding the State party’s failure to recognize survivors of torture, including sexual violence, as victims of the conflict, ‘a status which would enable them to obtain redress and exercise their right to fair and adequate compensation and rehabilitation’.82 In its later Concluding Observations on Bosnia, the Committee also underlined the importance of enacting national legislation, which clearly defines the status and rights of victims.83 However, legal provisions which subject the entitlement of victims to redress to the recognition of the offence by the perpetrator are considered by the Committee as violating Article 14.84

65  A fundamental aspect of the Committee’s victim-centred approach to the right to remedy and reparation is the importance it attributes to victim participation in the redress process. As the Committee notes, ‘the restoration of the dignity of the victim is the ultimate objective in the provision of redress’.85 Therefore, procedural measures such as active involvement of victims in reparation proceedings should be designed so as to ensure that they contribute to restoring a sense of agency, autonomy, and respect in the victim. For example, active and meaningful participation of victims in the investigations and during the criminal proceedings can in itself constitute a form of rehabilitation and empowerment of victims and can contribute to a sense of justice.86

66  In the State reporting procedure, the Committee has emphasized the importance of allowing victims to participate in criminal proceedings as civil parties.87 Victims, their (p. 390) families, and legal representatives should also be given the possibility of challenging the results of investigations.