Committee Against Torture General Comment No. 3 on Implementation of article 14 of Convention Against Torture by States parties

This Comment elaborates on a State Party’s substantive and procedural obligation under Article 14 of CAT, to provide for redress and an enforceable right to fair and adequate compensation for victims of torture in its legal system. In view of a State Party’s due diligence obligation to prevent and prosecute torture and ill treatment by non-State (private) actors, states carry responsibility for providing redress also for the victims of these perpetrators. Given the great prevelance of non-Sate actors in conflict situations in the last three decades, during which torture has repeatedly been used, the responsibiltiy of States to provide redress also for acts of these perpetrators, is absolutely necessary to cover a growing responsibiltiy gap.  With regard to all aspects of this two-fold obligation, the general notion is that redress must be adequate, effective, comprehensive and tailored the victim’s needs.

Implementation of the right to redress

On a procedural level, a State Party must develop legislationthat a) provides for an effective remedy, b) allows individuals to exercise this right and c) ensures their access to a judicial remedy. The Committee stresses that the application of Article 14 CAT is not limited to victims who were subjected to torture inside the territory of the State Party and that States Parties should also provide civil remedies to victims who were tortured outside their territory.

Furthermore, States Parties must undertake investigations into the alleged torture, establish complaints mechanisms and erect institutions empowered to render enforceable final decisions. Strikingly, and in contrast with the arrangements in many other states, civil proceedings and the victim’s claim for reparation should not be dependent on the conclusion of a criminal proceeding.  Moreover, when there are reasonable grounds to believe that torture or ill-treatment has taken place, States are required to pro-actively (absent a complaint) initiate a process to ensure that victims obtain redress.

State Party’s obligations under Article 14 CAT also entail that victims have adequate and effectiveaccess to mechanisms for obtaining redress. The Committee highlights that in practice this entails the following requirements:  a) victims must be adequately informed of their right to pursue redress, b) they should not encounter financial hurdles – the Committee points to the possibility of providing legal aid to victims,  c) victims are protected by the State Party after they have filed complaints or initiated proceedings, d) they shall have access to judicial remedies irrespective of what other remedies may be available and are not discriminated against, e) gender and child sensitive procedures should be put in place.

Obstacles to the right to redress

A State Party’s obligation under Article 14 cannot be put aside by obstacles such as its level of development, inadequate national legislation, State secrecy laws, amnesties and immunities. Explicitly, the Committee points at a State Party’s obligation to execute judicial orders to provide reparative measures for a victim of torture. Although it is perhaps too early to assess the effectiveness of the provisions of this protocol, the Committee clearly seeks to raise the status and priority of the obligation to provide reparatory measures to torture victims.