55 Chapter VII: Remedies and reparation for victims VII.1 Specific forms of reparation for forced confessions One rationale for exclusion of ‘torture evidence’ is to protect the torture victim’s rights. It operates, in part, as a remedy for the victim – preventing further damage resulting from the torture due to the state’s inability to rely on the evidence. As discussed, the scope of the exclusionary rule under international law is unclear in some respects and many states have not implemented it effectively. Despite this, exclusion of the evidence remains one of the most common responses of states to ‘torture evidence’. It is rare for the fact of torture to result in the staying of proceedings or quashing of the charges, unless the evidence procured directly from that torture was the only evidence to sustain a conviction.300 As the Spanish Supreme Court has noted, if the evidence does not ‘pass the legality test, it becomes […] unlawful evidence […] with an irretrievable nullity. It will drag down all other evidence directly deriving from’ such unlawful evidence.301 However, this will not necessarily trigger a re-trial if the torture is not deemed to have had an overall impact on the reliability of the conviction.302 In some legal regimes, criminal cases may be discontinued by the courts where there is a grave violation of human rights, on the basis that it would be an ‘abuse of process’ to continue the case. In the United Kingdom, the House of Lords has concluded that the courts have discretion to stay proceedings as an abuse if they would ‘amount to an affront to the public conscience’ and where ‘it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place’.303 This has been described as follows: ‘[T]hat the court, in order to protect its own process from being degraded and misused, must have the power to stay proceedings which have come before it and have only been made possible by acts which offend the court’s conscience as being contrary to the rule of law. Those acts by providing a morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial and, if tolerated, will mean that the court’s process has been abused’. 304 Although this power is applied only rarely and in a limited range of contexts,305 the underlying rationale would appear to apply to torture which, as discussed earlier, would ‘taint’ the court’s process. VII.2 Remedies and reparation for the underlying acts of torture The right of victims of torture and other human rights violations to reparation is a ‘well established and basic human right that today is enshrined in universal and regional human rights treaties and instruments’.306 In addition to its criminal elements, torture is recognised as a human rights violation engendering state responsibility as well as a tort giving rise to damages and other forms of reparation.307 In civil law legal systems, damages for torture are often pursued in connection with criminal proceedings following a conviction of the perpetrator for torture. In common law systems, civil claims for torture are usually pursued separately as torts: (i) through the civil courts;308 (ii) as part of constitutional fundamental rights petitions;309 (iii) pursuant to special torture compensation legislation;310 or (iv) as part of transitional justice frameworks (some of which will establish special reparation procedures).311 International law requires that individuals who are subjected to torture have access to a procedure at the national level for complaining about torture, which has the capacity to grant an effective remedy, including adequate and effective forms of reparation, which may include: restitution, compensation, rehabilitation, satisfaction, and guarantees of nonrepetition, each of which are described below. It is important for reparation to respond to the harms caused by the violation and, typically, multiple forms of reparation will be required.312