COMMITTEE AGAINST TORTURE DISCUSSES DRAFT GENERAL COMMENT ON THE RIGHT TO REDRESS

The Committee against Torture this afternoon met with stakeholders to hear their views on a draft General Comment on the right to redress and adequate compensation for victims of torture as defined in article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Claudio Grossman, Chairperson of the Committee, in opening remarks, said that General Comments were an important tool because they provided assistance to Member States, States parties and petitioners in understanding procedures or definitions that were not defined in the Convention in addition to providing greater transparency. The process for the draft General Comment on article 14 began in June when the Committee posted a working document for comment and had to date received 25 written comments.

Many Member States highlighted the victim orientated approach of the draft General Comment on article 14 and appreciated the emphasis on access to all means of reparation beyond financial measures. Other States noted that article 14 provided that all forms of torture could not be bound to a statute of limitations and the prohibition on giving amnesty to acts of torture which could be in contradiction with domestic law. Other States raised concerns about the expanded obligation of the State to exercise jurisdiction in another State and said this could violate State sovereignty.

Non-governmental stakeholders said that the General Comment should acknowledge that the family members of victims also suffered from ill treatment and that it was important to recognize the gender specific harm caused by torture, especially against women and girls. They noted the need to take special measures to address delays, corruption and the non-enforcement of rewards which made redress difficult to achieve for victims.

In reply, Committee Experts said that the General Comment recognized the difficulty of ensuring that rehabilitation and reparation not only took place but did so in a way that met the needs of those who had been exposed to torture, which often left individuals without a clear sense of their rights and identity. Mr. Grossman thanked the stakeholders for the rich presentations made today and for their participation.

Member States that took the floor were Spain, China, Norway, Canada, Switzerland, United States, Russian Federation, Costa Rica, United Kingdom, Denmark, Australia, Chile, Morocco, Mexico and Peru.

The non-governmental organizations that participated in the meeting were the International Rehabilitation Council for Torture Victims, Amnesty International, the World Organization against Torture, Freedom from Torture, Redress, Centre for Reproductive Rights, Centre of Legal Studies, Association for the Prevention of Torture, the International Commission of Jurists, the International Disability Alliance, and the Center against Torture.

The Committee will next reconvene on Friday, 25 November when it will consider its programme of work for future sessions and issue its concluding observations and recommendations on the reports of Morocco, Djibouti, Paraguay, Germany, Sri Lanka, Bulgaria, Madagascar and Belarus before concluding its forty-seventh session.

Discussion

Opening Remarks

CLAUDIO GROSSMAN, Chairperson of the Committee, in opening remarks, said that General Comments were an important tool because they provided assistance to Member States, States parties and petitioners in understanding procedures or definitions that were not defined in the Convention in addition to providing greater transparency. The process for the General Comment on article 14 began in June when the Committee posted a working document for comment. To date, the Committee had received 25 written comments on the working document.

Statements by Member States

Spain noted that all forms of torture could not be bound to a statute of limitations and a prohibition on giving amnesty to the behaviour of torture. Spain’s experience of applying the law of amnesty was critical in putting an end to the Franco dictatorship. In some cases amnesty could be supported by the society as a whole.

China said it commended the efforts of the Committee in convening a public consultation on article 14. China raised an issue about the expanded obligation of the State to exercise jurisdiction in another State and said this would violate State sovereignty. Immunity had no link to the obligations of the State.

Norway said it was generally supportive of the issuance of treaty bodies of General Comments which helped States parties to implement their human rights obligations and would consider this one in great detail.

Canada said the draft General Comment attempted to address the various aspects of reparation that would provide useful guidelines to all States parties. Canada observed that the draft General Comment highlighted that victims should have access to all means of reparation that went beyond financial measures.

Switzerland said it that supported the draft General Comment and raised three points. First, there should be a clarification of the definition of victim to include members of the family of the victim. Second, the scope of the application of the General Comment should be drafted so that it was in line with the scope of the Convention itself. Thirdly, the application of the statute of limitations was dealt with in the statutes of the Court of Rome and there should not be a broader application to apply it.

The United States said that article 14 afforded States significant discretion to craft forms of remedy for victims of torture and suggested the Committee provide States parties with adequate notice for consultation on draft General Comments.

The Russian Federation said it was concerned about the expanded concept of the definition of the victim to include relatives and family members, especially as torture was a difficult crime to prove.

Costa Rica said that all exchange of viewpoints between the Committee and States parties was important. Costa Rica had not experienced cases of torture and as such there was no judicial experience in the country on this matter but the Government believed it was important to look at reparation in a broader way than simply financial terms and highlighted the need for human rights education and training. The Committee should use regional offices to assist in its work.

The United Kingdom said it was still studying the draft and would submit written comments to the Committee.

Denmark said that a victim orientated approach to the draft General Comment was critical. Not only should women be considered as a vulnerable group but also children and other sections of society. There should be no dependence on administrative or judicial procedures for reparation to take place. Denmark asked if it made sense to adopt guidelines on reporting for those States who had not yet adopted the List of Issues Prior to Reporting.

Australia said it was firmly committed to the obligations of the Convention and had submitted detailed written comments on the working document. Australia was concerned about the application of article 14 to acts of torture committed in another country.

Chile said the work of the Committee was important and that General Comments contributed to the progressive development of international human rights law. There was considerable convergence between the draft General Comment and the Inter-American regional system. The idea of including different categories of victims along with victim participation was critical in the provision of redress. A process of reparation without fully involving the victim could not be true redress. The scope of reparation should not simply include financial compensation because the social fabric of the community was also impacted by torture. Chile had established a truth committee, justice follow up programmes and symbolic reparation for victims.

Morocco said it had not yet submitted comments in writing on the issue but welcomed the victim centred approach which guided the Committee’s work. The rights of the victims were most important and Morocco highlighted and appreciated areas in article 14 that referred to transitional justice.

Mexico said that the recent constitutional reform of human rights in the country reflected the ideas of compensation, rehabilitation and redress. The Mexican State had made substantial efforts in upholding human rights beyond the material aspects of reparation including publically acknowledging its responsibility in specific cases. The draft General Comment could be clearer in terms of individualization of the victim. States needed to draw a distinction between an individual and a collective victim. Mexico asked when the State’s obligation would arise in either the judicial or administrative review process.

Peru said it agreed with the approach adopted throughout the draft General Comment and noted the importance of restoring victims as the overall aim of redress and including victim participation in the design and monitoring of reparation programmes. Homage paid to victims in a public manner was critical to redress. Collective or symbolic reparation could not be a replacement for individual reparation. Civil society organizations and human rights defenders were critical for the prevention of torture.

Statements by Non-Governmental Organizations

The International Rehabilitation Council for Torture Victims said it welcomed the strong victim centred approach of the draft text. Many persons who were exposed to torture and ill treatment suffered immediately after the incident and the longer that redress and rehabilitation took the longer the victim would suffer. Criteria should be developed for the rehabilitation of victims and it was important that victims themselves should have a voice in developing such criteria.

Amnesty International said that it welcomed the recognition that all recognized forms of reparation should be included, such as rehabilitation, restitution, satisfaction and guarantees of non-repetition, not just monetary reparation. The definition of victims in paragraph three was an important contribution. However, the text should acknowledge that the family members of victims also suffered harm from their ill treatment. Amnesty International noted the importance of recognizing gender specific harm caused by torture, especially against women and girls.

The World Organization against Torture said that it endorsed the overriding concept of the right to remedy and redress. For child victims there was a need for specific guidance to be provided to States parties in terms of child access to justice. Concerning torture in the fight against terrorism, national security exceptions could be an impediment to redress and there should be more guidelines to States parties in this area. The individual communication system in the Convention was critical for victims of torture and there should be a guarantee that those who used this communication would not suffer as a result.

Freedom from Torture said it was an organization working with victims of torture and the right to redress was a critical issue. The focus on a holistic approach to rehabilitation was critical to building the capacity of survivors. The accessibility of rehabilitation for victims should be specified in more detail and services should not only be effective but appropriate with a gender and child specific focus and provided in a safe and stable environment.

Redress said it was founded 20 years ago by a torture survivor who had never received redress. The victim centred approach and its reflection of current international law were important components to the General Comment. The draft could be strengthened further in relation to vulnerable and marginalized groups and the interplay with the General Comment and abuses by non state actors. There was a need to take special measures to address delays, corruption and the non-enforcement of rewards which made redress difficult to achieve.

The Centre for Reproductive Rights said women and girls worldwide faced a range of violations to their reproductive rights such as involuntary sterilization. It was important to provide services to address the health needs of female victims and the effective and timely complaint review mechanisms for the prevention of further harms. Women and girls could encounter social and cultural barriers to redress mechanisms.

The Centre of Legal Studies said that the notion of victim required a gender perspective. Sexual orientation should be included in the General Comment and there was a need for a greater focus on prevention and causes as had been done with the Inter-American human rights system.

The Association for the Prevention of Torture said that by failing to take effective measures to prevent further violations, States parties were violating international law and therefore any reward of reparations should include the measures that the State party would take to prevent further torture. Safeguards should be developed to prevent torture and States should undertake institutional visits and reforms to centers of detention which would have a powerful preventive effect.

The International Commission of Jurists said that the situation of non-state actors was critical in preventing torture, as evidenced by the role of private security forces, and emphasized that the State had a responsibility to protect against torture that occurred by non-state actors. Although non-judicial administrative remedies such as commissions and ombudsmen could provide redress, for cases of serious human rights violations such as torture there was a need for judicial review to assure the effectiveness of administrative redress.

The International Disability Alliance said that there was a need to adopt trauma informed approaches in rehabilitation programmes which would incorporate the impact of the ill treatment that had been experienced. The Committee should incorporate into the general document that all services and treatments would be based on the voluntary right of the victim to receive services.

The Centre against Torture said it supported the draft document and highlighted the role of the State in preventing torture. There was a need for technical assistance to be provided by the Committee in the implementation of the Convention. Most victims of torture suffered from a lack of adequate compensation because State actors had insufficient policies, laws and resources to address torture. A monitoring system within the national level was required to assure proper follow-up.

Reply to Comments

CLAUDIO GROSSMAN, Chairperson of the Committee, in response to the comments provided by all stakeholders, said that the presentations made today were rich and thanked everyone for their participation. The purpose of the Convention was humanitarian and therefore interpretation was in favour of the victim. Mr. Grossman said that he had represented the family of a disappeared person in a case in Honduras, which was an early case of taking into account the family as a victim who had rights to compensation. Reparation and remedy were essential to the work of the Committee because this closed the circle on the obligation of the State in upholding the Convention.

FERNANDO MARINO MEMENDEZ, Committee Expert, said that he was concerned about the interpretation of article 5.2 of the Convention which stated clearly that the State had an obligation to exercise jurisdiction against an individual who was in the territory of the State when the individual had engaged in torture if the State party had not extradited the individual.

NORA SVEAASS, Committee Expert, said that it was difficult to ensure that rehabilitation and reparation not only took place but should do so in a way that met the needs of those who had been exposed to torture, which often left individuals without a clear sense of their rights and identity. Victim participation was critical in this area.

ALESSIO BRUNI, Committee Expert, said that there were differing points of view presented today and the Committee would consider them in its final General Comment based on its interpretation of the procedure.

ESSADIA BELMIR, Committee Expert, said that the General Comment of the Committee focused on a broader concept of State party jurisdiction that went beyond territory.

FELICE GAER, Committee Expert, said she appreciated the comments concerning the victim centred approach and the fundamental principle of State immunity. Ms. Gaer asked how many States had created funds or mechanism for victims of torture.


For use of the information media; not an official record

CAT11/046E