PART B – International standards in the Istanbul Protocol
39
V. INTERNATIONAL STANDARD ON RIGHT TO AN EFFECTIVE REMEDY AND ADEQUATE REPARATIONS FOR VICTIMS OF TORTURE AND CRUEL, INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT
The right to reparation for victims of torture
and cruel, inhuman or degrading treatment
and punishment is well-established: it is a
fundamental principle of general international law that the breach of an international
obligation entails the duty to afford repara161
tion. The prohibition to commit torture is
an obligation of all States under general international law, and therefore, if breached, a
new international duty to afford reparation
arises independent of any treaty obligation.
Under international law: “Reparation must,
as far as possible, wipe-out all the consequences of the illegal act and re-establish the
situation which would, in all probability, have
existed if that act had not been committed”.162
In other words, reparation for torture must
be adequate/appropriate; that is proportional to the harm suffered and should as
far as possible restore the life and dignity of
the torture victim. For example, the Human
Rights Committee established that although
compensation may differ from country to
country, adequate compensation excludes
purely “symbolic” amounts of compensation.163
According to the UN Basic Principles and
Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law, the forms that reparation may take
include: restitution, compensation, rehabilitation and satisfaction and guarantees of
non-repetition. 164
1. FORMS OF REPARATION
Restitution
This form of reparation consists of re-establishing the status quo ante, i.e. the situation that existed prior to the occurrence of
the wrongful act. Although it is generally
not possible to “undo” the pain and suffering caused by human rights violations, certain aspects of restitution might be possible
– such as restoring an individual’s liberty,
enjoyment of human rights, identity, family
life and citizenship; return to one’s place of
residence; restoration of employment and
return of property.165
Compensation
The role of compensation is to fill in any
gaps so as to ensure full reparation for the
damage suffered (as long as the damage is financially assessable).166 The Inter-American
Court held, in the Velásquez Rodríguez Case
that “it is appropriate to fix the payment
of ‘fair compensation’ in sufficiently broad
terms in order to compensate, to the extent
possible, for the loss suffered.”167 Awards of
compensation encompass material losses
(loss of earnings, pension, medical expenses, etc) and non-material or moral damage
(pain and suffering, mental anguish, humiliation, loss of enjoyment of life and loss
of companionship or consortium), the latter
usually quantified on the basis of an equitable assessment.
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