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Torture survivors have the right to redress and rehabilitation

Human Rights Comment
Strasbourg 07/06/2016
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Torture survivors have the right to redress and rehabilitation

Torture and ill-treatment are practiced in at least 140 countries worldwide, according to data compiled by Amnesty International. Regrettably, those phenomena still occur in Europe, too. They are often – but not only – linked to armed conflicts. Moreover, people who have experienced torture elsewhere continue to arrive on the European continent.

The thousands of human beings who have already been through the severe pain of torture also face a range of devastating long-term consequences. In particular, survivors of torture frequently experience chronic pain, headaches, insomnia, nightmares, depression, flashbacks, anxiety, and panic attacks, and can become overwhelmed by feelings of fear, helplessness and even guilt because of what happened to them. Feelings of shame and a loss of dignity on the part of torture victims are often compounded by stigmatisation in the community and social isolation. Post-traumatic stress disorder affects both the victims themselves and their families. If left untreated, the consequences of torture can extend throughout a person’s life-time and even beyond, across generations, having a corrosive effect upon entire societies.

One of the main international instruments concerning victims’ right to redress for gross human rights violations, including torture, is the 2005 UN Resolution on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and Serious Violations of International Humanitarian Law.[1] The restoration of the dignity of the victim is the ultimate goal of the provision of redress. The obligation of states to provide redress to a victim of torture has two components: substantive, in the form of reparation (restitution, compensation, rehabilitation, satisfaction and guarantee of non-repetition);[2] and procedural, in the form of an effective remedy.[3] The latter requires the existence of a proper legislative framework and institutional mechanisms enabling a prompt and effective investigation and, eventually, prosecution and punishment of those responsible for the violations. The notion of an effective remedy also encompasses the victim’s right to participate in those proceedings to safeguard his or her legitimate interests.

When seeking compensation, victims of serious human rights violations such as torture can encounter obstacles. For example, in Serbia, a pending draft law on compensation still excluded some 15000 civilian victims of wartime sexual violence and torture, and the judiciary set a high standard of proof in the proceedings concerned. In the Russian Federation, the amount of compensation awarded in torture cases can vary significantly from one region to another. In many cases, the compensation victims receive is inadequate as compared to the harm suffered. However, the standards set up by the European Court of Human Rights play a positive role in influencing domestic courts in raising compensation to an adequate level.

Monetary compensation alone cannot be regarded as adequate redress for a victim of torture. Setting things “right” after such a traumatic life experience as torture or ill-treatment requires holistic and long-term rehabilitation efforts to restore the dignity, physical and mental ability, and social independence of the individuals concerned, as well as their full re-inclusion in society. The rehabilitation process should include not only medical and psychological care, but also social, legal, educational and other measures, as well as family support.[4] To be effective, rehabilitation must be victim-centred and be provided at the earliest possible point in time after the torture event based on the recommendations by a qualified health professional. Rehabilitation should be tailored to the specific needs of a given victim.

In the context of armed hostilities, we often observe a rapid deterioration in the human rights situation. There have been thousands of cases of torture and other forms of ill-treatment related to the armed conflict in eastern Ukraine. During my March 2016 visit to Ukraine, I received information that military personnel who had been released from captivity were eligible for state psychological rehabilitation programmes upon their exchange and return. However, civilian victims of torture were not benefiting from such systematic state support. While NGOs and volunteers were actively engaged in the rehabilitation process, they apparently lacked funding and support by the State. This issue must be addressed as a matter of priority, not least because rehabilitation of victims of gross human rights violations can play a crucial role in the reconciliation process.

In the case of asylum seekers and refugees, specific additional rehabilitation services could include assistance in documentation of torture for the asylum decision, as well as help in finding the whereabouts of relatives and connecting with them. In some countries such as Germany where the authorities have made considerable efforts to protect refugees, there is still no consistent practice regarding rehabilitation of victims of torture. The latter frequently experience difficulties in access to treatment, due to high demand, staff shortages and lack of infrastructure; only 25 centres across the country, usually NGO-operated, carry out rehabilitation work. A lack of interpreters, especially in the mental health care system, may also hamper assistance to victims.

Victims of sexual violence must be provided with specific rehabilitation programmes adapted to their  needs. In June 2015 a law was enacted in Croatia on the rights of victims of wartime sexual violence, which provides compensation and other forms of reparation, including medical rehabilitation and psychosocial services. Although this development certainly represents a positive step, certain shortcomings in the law and its implementation were reported to me during my recent visit to Croatia.

States have the obligation to ensure that long-term programmes of rehabilitation are accessible to all victims of torture or ill-treatment without discrimination and with full respect for victims’ right to confidentiality. This may either be done through the direct provision of these services by states, or by support or funding to private or non-governmental programmes. Irrespectively of the arrangements found, it is essential that persons who have experienced torture are able to place their trust in the rehabilitation services offered. It is also important to ensure that providers of rehabilitation services are protected from reprisals or intimidation for their work. Cooperation between NGOs and state services is therefore vital to ensure the effective provision of holistic rehabilitation services to victims.

Many of the torture rehabilitation services active today are under the umbrella of the International Rehabilitation Centre for Torture Victims (IRCT), a large global network. Those centres provide holistic rehabilitation services to victims and have amassed extensive knowledge about the experience of victims and the situation as regards torture and ill-treatment in specific settings. In Turkey, for example, NGOs perform invaluable work to rehabilitate torture survivors, both physically and psychologically. For example, the Human Rights Foundation of Turkey, a member of the IRCT, operates five centres in major cities in Turkey, where support is provided to victims and family members free of charge.

However, despite the work carried out by organisations involved for decades in the fight against torture, most states do not implement the right to rehabilitation in accordance with established international norms and obligations. Domestic laws, public policies and state budgets frequently do not ensure the implementation of the right to rehabilitation and, even if there is a state rehabilitation programme in place, victims are often reluctant to turn to them if they have doubts about their independence. In a number of cases victims of torture and ill-treatment are not properly identified by the relevant mechanisms and procedures, which prevents them from accessing rehabilitation services.

Access to justice is an essential feature of the right to redress. This implies a criminal investigation of allegations of torture and ill-treatment (or an ex officio investigation in the absence of a complaint), fair and impartial judicial proceedings within a reasonable time and the enforcement of the decisions taken. The possibility for a victim to participate actively in the proceedings is especially important, and could in itself constitute a part of the rehabilitation process. Often, participation in judicial proceedings can contribute to the restoration of victim’s dignity and a sense of justice, and testifying before the court can bring a sense of empowerment, thereby attenuating the negative effects of the human rights violation experienced.

However, the available procedures and mechanisms must be conceived and implemented with special care to avoid a person’s re-victimisation. This is particularly important in the context of criminal proceedings, when respect for the principle of presumption of innocence for defendants, cross-examinations of a victim, strict rules on admissibility of evidence, and the questioning of a complainant’s credibility, can expose victims to renewed trauma and humiliation. In addition, attention should be devoted to protect victims from intimidation and retaliation due to their involvement in such judicial proceedings.

Another set of obstacles in providing an effective remedy to a victim of torture or ill-treatment relates to the application of statutes of limitations for certain offences, and immunities and amnesties to those responsible for violations. Although statutes of limitations should not apply to serious violations of human rights and humanitarian law, behaviour amounting to torture or other forms of ill-treatment may not always be qualified as such under domestic criminal provisions. A common example – which I have encountered in several Council of Europe member states - is when instances of torture are prosecuted under criminal provisions such as “abuse of authority” or “infliction of light bodily harm”. Similarly, the application of amnesties and immunities deprives victims of reparation and of an effective remedy for the harm sustained.[5]

In order to grant torture survivors full redress and rehabilitation, states should ratify all relevant international instruments and ensure that their domestic law is in full compliance with international standards. Holistic rehabilitation services must be given full support, to enable the individuals affected to rebuild their lives and regain their place in society. The foregoing must be accompanied by anti-torture measures of a preventive nature, including a zero-tolerance message, awareness-raising and professional training for public officials, as well as a firm commitment to combating impunity. When measured against the horrors experienced by those individuals who have survived torture and the negative repercussions upon society at large, it is the least a state can do.

Nils Muižnieks

[1] 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 (Resolution adopted by the UN General Assembly on 16 December 2005). The right to redress is also explicitly recognised in the Universal Declaration of Human Rights (Article 8), the International Covenant on Civil and Political Rights (Article 2), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 14), the Additional Protocol I to the Geneva Conventions of 1949 (Article 91), the Rome Statute of the International Criminal Court (Article 68) etc.

[2] See the General Comment no. 3 (2012) of the Committee against Torture on the Implementation of Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by State parties.

[3] See for example, the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 13), the American Convention on Human Rights (Article 25), the African Charter on Human and Peoples’ Rights (Article 7) and other instruments.

[4] See Committee of Ministers Recommendation Rec(2006)8 to member states on assistance to crime victims adopted on 14 June 2006.

[5] See, for example ECHR judgment, Marguš v Croatia [GC] no. 4455/10, § 135, 27 May 2014