The right of torture victims to complain and to adequate remedy and reparation is laid down in articles 13 and 14 of the Convention against Torture (CAT).
Article 13 grants every victim of torture and ill-treatment an effective right to complain to a competent body without fear of reprisals. This implicates that the State party takes the necessary measures to protect both the complainant and witnesses against ill-treatment
and intimidation as a consequence of such complaint or witness testimony. Article 13 constitutes the basic remedy for torture victims and completes the obligation to launch an ex-officio investigation into torture allegations (under article 12), both articles aiming at the establishment of the facts by a competent and independent authority.1 Whereas article 12 requires the responsible authorities to carry out ex-officio investigations whenever there is a suspicion of torture and ill-treatment (according to article 16 of CAT, the right of victims to a remedy under article 13 also applies to CIDT), article 13 requires such investigation in response to a complaint by the victim.
Dependent on these facts, further action may or shall be taken with a view to bringing the perpetrators to justice under criminal law (articles 4 to 9) and/or providing victims of torture and ill-treatment with reparation under civil law pursuant to article 14. The availability of a civil procedure should not be dependent on the outcome of a criminal procedure. On the contrary, the standard of proof in criminal proceedings (beyond reasonable doubt) is higher and must not be applied in proceedings under articles 12, 13 and 14 of CAT.
Article 14(1) must be seen as a specific manifestation of the general right of victims of human rights violations to a remedy and adequate reparation as enshrined in article 2(3) ICCPR and similar provisions in regional treaties.2 Although, the terms used in article 14 do not fully correspond to the contemporary terminology, as laid down in 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 adopted in December 20053 which make reference to the procedural right to remedy and the substantive right to adequate reparation, it becomes apparent that the medical, psychological, social and legal rehabilitation as well as the financial compensation are major aspects of the right of torture victims to adequate reparation. Procedurally, States Parties are under the obligation to set up suitable (primarily judicial) institutions to enable torture victims to obtain redress; not only constitutional, civil, criminal and special human rights courts may grant a legal remedy, but also ombuds-institutions, national human rights commissions and special torture rehabilitation bodies may do so. Substantively, States must provide fair and adequate reparation for pain and suffering which can also be carried out according to an administrative procedure or a in a formless manner.
For victims of torture and ill-treatment, such reparation might consist of a proper investigation of the truth (also through a truth and reconciliation commission), an official recognition of the act of torture, for example through commemoration and tributes to the victims or other forms of dealing with the past, and an apology by the responsible authorities. Furthermore, the criminal prosecution and conviction of the individual perpetrators are important forms of reparation and redress, which shows that the application of criminal legislation does not only serve the fight against impunity and the prevention of torture, but is an important element of the right to adequate remedy and reparation of torture victims. Finally, monetary compensation for the pain, suffering and humiliation as well as for the material damage, for example for rehabilitation costs might provide satisfaction as an additional form of reparation. However, the Committee against Torture confirmed in the leading case of Guridi v. Spain4 that monetary compensation is not sufficient for a crime as serious as torture as the term of compensation should cover all the damages suffered by the victim, including restitution, compensation and the rehabilitation of the victim as well as the guarantee of non-repetition, depending on the circumstances of the case.5 The Inter-American Court of Human Rights applies a very extensive interpretation of reparation. For example in the case of Vargas Areco v. Paraguay, in addition to monetary compensation, the Court instructed the State to inter alia organize an official public act to acknowledge the State´s international liability and to apologize to the victim´s relatives and to name a street after the victim.
If torture is practised in a widespread or systematic manner, guarantees of non-repetition, such as amending relevant laws, fighting impunity, the establishment of effective preventive or deterrent measures might constitute a proper form of reparation. In case the torture led to the death of the victim the dependents are entitled to compensation, on behalf of the deceased person and on their behalf.
The right to reparation is primarily an entitlement of the victim vis-à-vis the State, responsible for the torture to repair the damage caused by torture. In addition, the individual perpetrator(s) can also be ordered to pay a part or the whole amount of the monetary reparation to the victim. Although the State responsible for the torture is under an obligation to pay and provide for such services of reparation and rehabilitation, in practice many torture rehabilitation centers receive no or only very little funding by the authorities and are dependent on non-state donors. The UN Voluntary Fund for Victims of Torture supports non-governmental rehabilitation centers with funds received by State donors worldwide.
Sources: Nowak/McArthur, The United Nations Convention against Torture – A Commentary, 2008; Nowak, Torture and Enforced Disappearances, in Martin Scheinin/Raija Hanski (Abo Akademie) (eds.), Textbook on International Human Rights, 151-182, 2009; Nowak, Vom Weltstrafrecht zum Weltzivilrecht oder vom Internationalen Strafgerichtshof zum Internationalen Gerichtshof für Menschenrechte? Überlegungen am Beispiel der Folterbekämpfung, in Isabelle Buffard/James Crawford/Alain Pellet/Stephan Wittich (eds.), International Law between Universalism and Fragmentation. Festschrift in Honour of Gerhard Hafner, Leiden 2008, 667 – 700, 2009.
1See Committee against Torture, Dzemajl et al v. Yougoslavia, No. 161/2000, § 9.6; Nikolic v. Serbia and Montenegro, No. 174/2000, §§ 8 and 9.
2 See articles 13 and 41 ECHR and articles 25 and 63 ACHR.
3 Res. 60/147 of 16 December 2005, often referred to as van Boven/Bassiouni Principles.
4 Committee against Torture, Guridi vs. Spain, No. 212/2002, §6.8. See also the case of O.R., M.M. and M.S. v. Argentina, Nos. 1,2,3 /1988.
5 See also ECtHR Assanidze v. Georgia, No. 71503/01 (8 April 2004) where the Court ordered the immediate release of the applicant under article 41 in conjunction with article 1 of the Convention (paras. 196 – 203).