A/55/290
26. According to the basic principles and guidelines,
the victim’s right to a remedy encompasses (a) access
to justice; (b) reparation for the harm suffered; and
(c) access to factual information concerning the
violations (para. 11). Regarding the right to reparation,
it is stated that adequate, effective and prompt
reparation proportional to the gravity of the violation
and the harm suffered (para. 15) should include the
following
forms:
restitution,
compensation,
rehabilitation, and satisfaction and guarantees of nonrepetition (para. 21). The content of these forms of
reparation is developed in paragraphs 22 to 25. With
respect to his mandate, the Special Rapporteur notes in
particular the recommendation that compensation
should be provided for any economically assessable
damage resulting from violations of international
human rights and humanitarian law, such as
(a) physical or mental harm, including pain, suffering
and emotional distress ...; and (e) costs required for
legal or expert assistance, medicines and medical
services, and psychological and social services
(para. 23). Furthermore, rehabilitation should include
medical and psychological care as well as legal and
social services (para. 24).
27. The Special Rapporteur shares the views of the
independent expert that the State should ensure that its
domestic laws, as much as possible, provide that a
victim who has suffered violence or trauma should
benefit from special consideration and care to avoid his
or her re-traumatization in the course of legal and
administrative procedures designed to provide justice
and reparation (para. 10). The Special Rapporteur notes
that this recommendation is particularly relevant for
the kinds of violations that fall within his mandate. For
example, the Special Rapporteur has received
information regarding the so-called “virginity test”
which has been complained of as being traumatic. The
Special Rapporteur received information according to
which women, even minors, were subjected to these
tests after having complained of rape. It was alleged
that not only the way the tests were carried out, but
also the very fact that they were subjected to that kind
of “testing” was a traumatic and humiliating experience
which, moreover, is reported to entail stigmatization in
the particular sociocultural context in which these
women were living.
28. The Special Rapporteur would like to emphasize
the inherent relationship between the right of torture
victims to obtain reparation and the prevention or non-
repetition of further violations. This link has been
established, inter alia, in the revised final report of
Louis Joinet on the question of the impunity of
perpetrators of human rights violations (civil and
political) (E/CN.4/Sub.2/1997/20/Rev.1) and the study
of Theo van Boven concerning the right to restitution,
compensation and rehabilitation for victims of gross
violations of human rights and fundamental freedoms
(E/CN.4/Sub.2/1993/8). The Special Rapporteur
believes that reparation, beyond the purpose of
relieving the suffering of and affording justice to
victims by removing or redressing to the extent
possible the consequences of the wrongful acts, has an
inherent preventive and deterrent aspect.
29. In his joint statement for the United Nations
International Day in Support of Victims of Torture with
the Committee against Torture, the Board of Trustees
of the Voluntary Fund for Victims of Torture and the
United Nations High Commissioner for Human Rights,
the Special Rapporteur urged all States to provide for
fair and adequate reparation, including compensation
and rehabilitation of the victims of torture, in their
domestic law. On that occasion, the increasing need for
legal assistance to obtain reparation, compensation and
rehabilitation services for torture victims was also
stressed.
30. It must be noted that in order to be in possession
of all relevant information, the Special Rapporteur
requests in his standard letter of transmittal of
allegations to Governments information on the nature
and amount of any compensation made to the victim or
his/her relatives. It must nevertheless be stressed that
details regarding reparation has rarely been received by
the Special Rapporteur.
31. The prevalence of impunity is incompatible with
full reparation to the victims of torture. Furthermore,
the Special Rapporteur would like to reiterate his
conviction, stated on several occasions, that the
continuation of the practice of torture is caused, in part,
by impunity, that is the implementation of de jure and
de facto obstacles to the prosecution of perpetrators of
torture (see E/CN.4/1999/61, annex). In particular, the
Special Rapporteur has noted with concern the use of
measures by States to limit legal liability such as the
adoption of acts of indemnities or the granting of
amnesties.
32. In addition, the Special Rapporteur would like to
recall the obligation of States parties to the Convention
7