44 A practical guide to the Istanbul Protocol – for lawyers 4. ACTION AT THE NATIONAL LEVEL TO IMPROVE IMPLEMENTATION OF THE RIGHT TO AN EFFECTIVE REMEDY AND REPARATION National legislation in most countries does not explicitly provide for any form of reparation for serious human rights violations, including torture. Several countries have adopted laws that allow survivors of torture to claim compensation against the State for wrongful conduct of their officials, normally as a matter of public law, but others only allow suits against individuals through normal civil procedures. However, the procedures for claiming compensation are often cumbersome and reparation is confined to specific types of violations (like personal injury). Compensation awards that have been made often do not reflect the gravity of torture as a human rights violation, and courts seem reluctant to afford additional forms of reparation, such as rehabilitation. In both civil and common law countries, most legal systems provide in their tort law that the wrongful infliction of personal injury carries a liability for reparation, particularly by paying compensation. In the majority of countries both the individual public official and the State are jointly liable. Generally, the effectiveness of civil law remedies is hampered by different factors including the lack of access to courts, short time limits to initiate proceedings, high legal costs and the difficulty of proving the claim in the absence of sufficient evidence.188 In some countries a civil court can order the relevant national authority to take disciplinary sanctions against the public official who perpetrated torture, however the effectiveness of this avenue of recourse is limited as such court orders often remain non-enforced. In several countries the outcome of civil proceedings is linked to the verdict in a criminal case. In countries where torture is institutionalised, the desirability for survivors of torture to bring a lawsuit against a public official or the State is extremely low. Additionally, the costs for bringing civil claims are normally very high and legal aid is usually not available. The option of filing a supplementary lawsuit as part of criminal proceedings is therefore an affordable and accessible option. However, the effectiveness of this remedy is limited for several reasons such as its dependency on effective investigations and prosecutions (these prerequisites are usually absent) and the fact that the reparation is often confined to compensation awarded against individual perpetrators. In some countries, compensation can be awarded as part of the punishment in criminal cases yet the torture victim cannot demand such compensation as a right because it is at the discretion of the court to impose punishment. Several countries provide for constitutional remedies by way of application to the highest courts and such applications have proved effective in a few countries, however, time restrictions on applications and the lack of locus standi for relatives of torture victims decreases the effectiveness of this remedy. Most national human rights commissions have the authority to recommend reparation for human rights violations. Although, in some countries, these commissions rarely recommend reparation and the amount of compensation recommended, if any, tends to be low.