By applying these criteria to the Committee’s decision, we
can conclude that the formula contained in the Convention
against Torture19 is the right to redress and an enforceable right
to fair and adequate reparation. Let’s say a formula for issuing
some concrete reparation measures in a particular case is that it
is vague to just leave to the State Party the means to comply with
the decision. Also, taking the risk of implementing measures
might be contrary to the victims’ needs. By issuing particular
reparation measures, the Committee would be able to control
the implementation of its decisions through its follow-up mechanisms that would eventually make the individual complaint
procedures a much more effective litigation tool, answer
questions on the merits of the complaint. Now the way these
hearings are held should be flexible enough as to allow the
Committee to listen to victims’ needs. Of course not every victim has the chance to travel to Switzerland, so the Committee
should be flexible enough to allow hearings in other parts of
the world, maybe held by a Committee’s working group or by
holding meetings with the use of technology. Well, the option of
General Comment 3 on the purpose of dealing in a better way
with reparations should lead the Committee to the issuance of
detailed reparation measures. These would not only be translated
into a better quality of the Committee’s decisions but also into
their effectiveness, as I will further explain.
should be taken into account by the Committee, especially when
dealing with torture cases. An important principle in reparations
is the causality principle, which states that the responsible state
is only allowed to redress those damages that are directly caused
by the violation of international law. However, in cases involving
gross violations of human rights, such as torture, the causality
principle should be understood as flexible enough as to encompass all the serious consequences of atrocities such as torture.
Torture victims, as a lot of you should know, are frequently
left with permanent damages as a product of the trauma experienced by torture. And in these cases, the Committee should use
concepts already explored by other international bodies such as
life, land, or lost opportunities in order to ensure that the damage
caused by torture will be fully repaired.
Having said that, for analytic purposes, reparation measures
can be broken down into five categories, as explained by the
commentary in General Comment 3,21 in accordance with international law. First there is restitution, which is aimed at restoring
the situation to prior to when the violation took place. Of course
this measure might be very difficult in cases involving gross human rights violations, such as torture, where the damage inflicted
might be permanent. But it also involves other kinds of measures
that are frequently very important for victims and for example,
victims who are imprisoned as part of criminal proceedings, but
on the basis of self-incriminating evidence obtained through
torture. And of course there arise a lot of difficulties for the international bodies to ensure compliance with the measures, such as
for habeas corpus petitions, because it depends on the domestic
court’s ruling on a particular criminal proceeding. And it will be,
I will assume, that the domestic courts will be very reluctant to
comply with this kind of order.
Implementation Procedures
In this regard, it is also worth mentioning that the Committee
already has the tools for an effective follow-up procedure of its
decisions—tools that other relevant international human rights
bodies lack. And I would like to mention here, for example, the
case of the Inter-American Court [of Human Rights]; one of the
weak points of the system is precisely the follow-up mechanism
of the Court’s resolutions. As you know, every now and then the
Court dictates a compliance resolution, holds meetings with
victims and representatives, but under no clear criteria for advocates. On the other hand, the Committee’s Rules of Procedure
establish in Rule 12020 a follow-up rapporteur-based mechanism
that could periodically check the compliance with particular
reparation measures as ordered by the Committee in a particular
decision. Also the Committee could take advantage of its constant dialogue with States Parties in periodic reviews in order to
hold special meetings with state representatives for the follow-up
of decisions, and in particular, with the compliance with reparation measures.
Second, compensation is a way of redressing all material
and non-material damages through monetary means and it all
encompasses actual losses and future loses, a measure that is
very important regarding lost opportunities for torture victims.
Third, rehabilitation measures, not only understood as medical
and psychological services, but also other kinds of social
services and legal services. These are measures aimed to fully
give back to the victim the possibility of living a normal life
in his or her particular social context. Fourth, satisfaction measures—very important in international human rights law—which
are aimed at restoring the victim’s dignity and include very important measures, such as the full disclosure of truth and investigation and punishment for perpetrators, that are by themselves
natural consequences of the human rights violations but have a
very important reparation value for victims. Fifth, and finally,
the guarantees of non-repetition, which includes, I will say, the
most ambitious reparation measures that can be issued. They
include new legislation—the issuance of new legislation and reform to states’ institutions. Actually, there are good experiences
with other UN committees. The [Committee on the Elimination
of Discrimination against Women] has issued very interesting
guarantees on non-repetition, for example, in cases regarding
domestic violence. It has ordered the state to build, for example,
In order to issue particular measures, the Committee should
first have a holistic approach to these measures, considering that
most of the time, reparation measures have no meaning for the
victim within the context of redress unless the Committee has a
comprehensive approach to these measures. Thus, for example,
the compensation received is frequently viewed as actually being
offensive by the victims in cases where the state hasn’t punished
the perpetrators or even started a serious investigation of the
facts. Also, medical assistance could be deprived of its reparation
potential in cases where the state hasn’t publicly recognized its
responsibility for the human rights violations. Also other things
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