PANEL IV
CHALLENGES TO PROVING CASES OF TORTURE
BEFORE THE COMMITTEE AGAINST TORTURE
Opening Remarks of Gabriela Echeverria, Moderator*
G
ood afternoon. This is the last panel
of the conference. I would like to, first
of all, thank the World Organisation
Against Torture and the American University
Washington College of Law for inviting me. The
topic of the conference is extremely interesting
and I am really pleased to be moderating this
panel. I will try to connect the last session on the
enforcement and implementation of decisions by
the Committee against Torture (CAT, Committee)
with this final session on the challenges to proving
cases of torture before the Committee.
the ECtHR. Their main concern was that the UN
bodies could not enact binding decisions in the
same way as the ECtHR. After a long conversation
on this issue, on the legal arguments concerning
enforceability of this type of decision, and after
analyzing the options that were available in the
region, it was decided that it was worth pushing this
project forward. The idea behind it was that even
if these decisions could not bring “real” remedies
to the victims, the cases could show the systematic
failures of the states that allow these violations to
happen. Therefore, these decisions—even when not
implemented by the States covered by the project—could be used in
other forums, for example to lobby legislatures in order to change key
legislation. In short, it was agreed that even if states do not generally
consider these “views” as legally binding and enforceable, at least the
opinions of UN bodies could be used in domestic lobbying efforts to
bring about legal and practical changes to combat torture.
I think this session shares, among other issues, the complexity
of the topic discussed in the last panel. As it became clear during the presentations and floor discussions, the enforcement and
implementation of CAT decisions is an extremely difficult task. I
thought it was very interesting how at the end of the session, there
was complete silence when Gerald [Staberock] asked for comments on what strategies could be used to improve the lack of enforcement of decisions by treaty bodies generally and specifically
by CAT. The lack of comments made evident that there are not
many strategies to improve the enforcement and implementation of
CAT decisions. It is extremely difficult. As Carla [Ferstman] mentioned, there have been cases where having an existing decision by
a UN body, some lawyers have tried to go back and implement the
decisions domestically. Generally, domestic judiciaries reject this
strategy, making the argument that UN treaty monitoring bodies
do not have the power to enact legally binding “views,” at least in
the same sense as the European Court of Human Rights (ECtHR)
or the Inter-American Court of Human Rights (IACtHR).
Having said that, it is important to note how the current panel
deals with another complex issue, which is proving cases of torture
and proving them before the UN Committee against Torture. I think
it is important to now discuss these challenges. Have in mind that it
is not only important to prove the torture or ill-treatment—which we
all know is very challenging—but also to make sure these cases shed
light on why these violations happened in the first place. It is important to show what the deficiencies are in the legal and administrative
systems, in the prisons, and in other detention centers that allow these
violations to happen and to make sure that there is evidence in this
regard when individual petitions are submitted. In particular, regarding the Committee against Torture, it is important to bear in mind
two things. First, the Committee follows the definition contained in
the Article 1 of the UN Convention against Torture,1 which is very
specific and is hard to prove. There is a severe element and a purposive element (which is not the case for example in the Inter-American
Convention to Prevent and Punish Torture).2 But also it is important
to remember that the UN Convention does differentiate between
Article 1 (torture) and Article 16 (cruel, inhuman or degrading treatment) and doesn’t apply all the safeguards applicable to Article 1 to
Article 16 (regional human rights conventions do not differentiate
between “procedural” obligations arising from torture or from other
forms of ill-treatment). So in this sense, when bringing a case before
the Committee against Torture, victims’ lawyers may have more of a
challenge in proving that there is the element of severity — that the
I remember many years ago I was in a meeting organized
by Open Society Justice Initiative—where I first met Karinna Moskalenko—where we were talking about implementing
a project in Central Asia to bring cases of torture before UN treaty
bodies. The reactions of the lawyers who were invited to this strategic
meeting were not very optimistic (despite Karinna’s very inspiring
presentation about her experience bringing cases before the ECtHR
in Russia). They all thought it was not the same to bring “international” petitions before UN monitoring bodies as to bring cases before
* Gabriela Echeverria is a human rights specialist who is currently a
Visiting Scholar at the Columbia Law School Human Rights Institute.
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