50
A practical guide to the Istanbul Protocol – for lawyers
1. ACCESS TO INTERNATIONAL
COMPLAINT MECHANISMS: EXHAUSTION OF LOCAL REMEDIES
For the reasons described above, it is considered under international law that States
should have an opportunity to repair any
human rights violation for which they are
responsible before the international bodies
198
– consequently, international
intervene
procedures for individual complaints generally require domestic remedies to have been
“exhausted” before accepting to examine
the complaint. However, there is no need to
exhaust domestic remedies when they are
ineffective or cannot provide fair and adequate reparation. In such cases victims or
their lawyers can seek recourse through the
most appropriate individual complaints procedure at the regional or international (uni199
versal) level.
For example, in a case before the European
Court of Human Rights, a torture victim contended that the failure of a public prosecutor to open criminal investigations hindered
their ability to invoke available domestic
remedies. It was stated that the victim was
unable to ensure a criminal prosecution of
perpetrators (for example by challenging the
decision not to prosecute in administrative
courts) because the lack of an investigation
meant there had never been a formal decision not to prosecute. The Court held that the
failure of the public prosecutor to open an
investigation was tantamount to undermining the effectiveness of any other domestic
remedies that may have been available.200
When assessing domestic remedies, the
threshold applied by international human
rights mechanisms to investigating allegations of torture effectively is very high.
States have an obligation under international law to investigate allegations of torture.
Although it is normally recognised that this
obligations is not applicable to non-wellfounded allegations, in respect of the im-
pact of the failure to investigate allegations
on victims’ access to a remedy and reparations, the European jurisprudence suggests
that States will have violated victims’ rights
when they have failed to investigate despite
the existence of an “arguable claim”. In
Veznedaroglu v. Turkey, the European Court
of Human Rights implied that a complaint
needs to be “arguable” in order to trigger the
State’s obligation to carry out an effective
201
investigation. What constitutes an “arguable claim” is determined on a case-by-case
basis.202
While the specific contents of this threshold
have not been made clear, some European
cases refer to a ‘reasonable suspicion.’203
According to the case law, allegations have
been classified as arguable when backed
up by at least some other evidence, be this
witness testimonies or medical evidence or
through the demonstrated persistence of the
complainant.204
Through regional or international supervisory bodies, it is possible to invoke a national government’s obligations under international law to obtain a formal or informal
response to allegations of torture and obtain
a remedy for the victim of torture.205 For example, the Inter-American Court of Human
Rights has ordered governments to investigate violations and sanction perpetrators, as
well as award compensation and rehabilitation (medical treatment for victims and their
206
relatives).
Improving the general level of public awareness about the nature and scope of decisions
made by international human rights bodies
can only assist lawyers in their efforts to improve domestic implementation of international standards prohibiting torture. However, it is extremely important that lawyers
seek not only reparations for the torture (or
other violations) suffered by their clients,
but that they also argue before international
complaints mechanisms the failure of the
domestic system to provide effective proce-
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents