REDRESS - Seeking Reparation for Torture Survivors

E/CN.4/1986/15 19 February 1986
Recommendations:	159. Whenever a detainee or his relatives or his lawyer lodge a complaint about his being subjected to torture, a judicial inquiry should take place. When the complaint is deemed to be well-founded the victim or his relatives should be entitled to compensation.

E/CN.4/1987/13 9 January 1987

Conclusions:

88. Another measure which may contribute to the eradication of torture is the establishment of an independent authority which can receive complaints by individuals about administrative abuses, including torture. In some countries such a post already exists, be it under the name of ombudsman or some other title. On several occasions the Special Rapporteur, after having brought allegations of torture to the attention of Governments, has received the reply that they must be false, since under national law victims of torture may lodge a complaint with the judiciary but the persons concerned have not done so. Such a reply seems to underestimate the effects of torture on the victim and the circumstances in which it has taken place. In many cases the victim is afraid to take action against his erstwhile torturer publicly and independently and, rather than go through a further ordeal, prefers to do nothing at all. That may be different if can appeal to a person who is not part of the State apparatus but has legal authority to take action against official functionaries and who may decide not to disclose the identity of his informers or only to do so collectively. There again, the long-term effect will be preventive, since people who are in a position to practise torture will know that there is a fair chance that they will be held accountable if they actually do so.

E/CN.4/1990/17 - 18 December 1989
Recommendations:	272. (g) In every case of death of a person during his detention or shortly after his release, an inquiry into the cause of death and the circumstances surrounding it should be held by a judicial or other impartial authority. (i) Whenever a person is found to be responsible for acts of torture or severe maltreatment he should be brought to trial; if found guilty, he should be severely punished.

E/CN.4/1992/17 - 27 December 1991
Recommendations:	294. (h) Whenever a torture complaint is found to be justified, the victims should be provided with compensation without delay. (i) Whenever a torture complaint is found to be justified, the perpetrators should be severely punished. If the torture is found to have taken place in an official place of detention, the official in charge of this location should be disciplined or punished.

E/CN.4/1993/26 - 15 December 1992

Recommendations:

588. The Committee further states that those who violate article 7, whether by encouraging, ordering, tolerating or perpetrating prohibited acts, must be held responsible and that victims should have the right to lodge complaints, which must be investigated promptly and impartially by competent authorities, and that they are entitled to appropriate redress.

589. Without exception, these measures have been recommended by the Special Rapporteur. If each and every State took such measures and vigorously supervised their implementation by the various branches of State authority, no torturer could do his dirty work in the expectation that he could evade punishment. For it is impunity which makes torture attractive and feasible. Far too often the Special Rapporteur receives information that persons have been kept in so-called "safe-houses", that they were hooded or blindfolded before being interrogated in order to make it impossible for them to identify their interrogators, that they have been held incommunicado for a considerable period, that they had no access to their lawyers and to doctors of their own choice, that their relatives were kept uninformed about their whereabouts, that courts admitted and accepted statements and confessions in spite of the fact that during trial the suspect claimed that these had been obtained under torture, that complaints have to be lodged with the same authority which allegedly has tolerated or encouraged the torture practices, that complaints are not investigated by an independent body and that, consequently, those who are responsible for the prohibited acts go unpunished and those who are the victims of these acts are left without an effective remedy and without appropriate redress.

E/CN.4/1994/31 - 6 January 1994

Recommendations:

666. As in previous years, it must be concluded that torture occurs, lamentably, in a significant number of countries. It is virtually axiomatic that situations where torture is systematically practised are characterized by one or both of the following phenomena:

(a) The legal system does not provide the institutional safeguards needed to restrain law enforcement officials and members of security forces from resorting to abusive and illegal behaviour to achieve their aims.

(b) Those conducting the torture enjoy de jure or de facto impunity. De jure impunity generally arises where legislation provides indemnity from legal process in respect of acts to be committed in a particular context or exemption from legal responsibility in respect of acts that have in the past been committed, for example, by way of amnesty or pardon. De facto impunity occurs where those committing the acts in question are in practice insulated from the normal operation of the legal system. Such immunity may begin with the absence of safeguards of the sort mentioned in (a) above. Sometimes the safeguards may be formally in place and applicable, but those charged with maintaining public order are allowed to become "a law unto themselves" or, more accurately, the law is prevented from reaching their acts. Legality and the rule of law are dispensed with. In the case of torture, grave crimes are committed in the name of maintaining public order. Nothing can be more corrosive of general respect for law, without which no organized society can in the long term be secure.

668. As regards impunity, the World Conference on Human Rights evinced a general concern with the problem in the Vienna Declaration and Programme of Action, part II, paragraph 91 of which states:

"91. The World Conference on Human Rights views with concern the issue of impunity of perpetrators of human rights violations, and supports the efforts of the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities to examine all aspects of the issue."

In addition, concerning the specific issue of torture, part II, paragraph 60 states:

"60. States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law."

669. Furthermore, in resolution 1993/40, under which the Special Rapporteur was appointed, the Commission on Human Rights endorsed the recommendation of his predecessor that whenever a complaint of torture is found to be justified, the perpetrators should be severely punished, especially the official in charge of the place of detention where the torture is found to have taken place. (E/CN.4/1992/17, para. 294 (i)).

E/CN.4/1995/34 - 12 January 1995

Recommendations:

926. The compilation of recommendations which may all be resolved into one global recommendation - an end to de facto or de jure impunity (see E/CN.4/1994/31, paras. 666-670) - follows:

(a) Countries that are not party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment should sign and ratify or accede to that Convention. Torture should be designated and defined as a specific crime in national legislation. In countries where legislative provisions do not exist which give authorities jurisdiction to prosecute and punish torture, the enactment of such legislation should be made a priority. [.];

(g) When a detainee or relative or lawyer lodges a torture complaint, an inquiry should always take place. A complaint that is determined to be well founded should result in compensation to the victim or relatives. In all cases of death occurring in custody or shortly after release, an inquiry should be held by judicial or other impartial authorities. A person found to be responsible for torture or severe maltreatment should be tried and, if found guilty, punished. Legal provisions granting exemption from criminal responsibility for torturers, such as amnesties, indemnity laws, etc., should be abrogated. If torture has occurred in an official place of detention, the official in charge of that place should be disciplined or punished. Military tribunals should not be used to try persons accused of torture. Independent national authorities, such as a national commission or ombudsman with investigatory and/or prosecutorial powers, should be established to receive and to investigate complaints. Complaints about torture should be dealt with immediately and should be investigated by an independent authority with no relation to that which is investigating or prosecuting the case against the alleged victim;

E/CN.4/1996/35 - 9 January 1996

Recommendations:

It is clear that torture occurs in many countries, all too frequently on an extensive basis. The Special Rapporteur continues to believe that, if States were to comply with the recommendations that have been made over the years and summarized in last year's report (E/CN.4/1995/34, para. 926), it would occur only in isolated instances and it would be promptly redressed.

It is to ensure that the Special Rapporteur is in possession of the relevant information that, in his standard letter of transmittal of information to Governments, the Special Rapporteur requests the following information where "it is pertinent to the cases in question.": (i). (iii) the court, agency or other competent body which was, or is, responsible for investigation of the allegations and/or the prosecution of those responsible; .(vi) the decision on a complaint, the grounds for this decision and any disciplinary or criminal sanctions imposed, as well as whether or not the measure(s) imposed is (are) final; (vii) the present status of any investigation or legal action not yet completed; (viii) the nature and amount of any compensation made to the victim or his/her relatives; (ix) in the event the investigation has not been completed, the responsible parties have not been identified, prosecuted, or punished or compensation not paid, the reasons why such is the case; and (x) any other information or observations which the Government deems pertinent.

E/CN.4/1998/38 - 24 December 1997

Recommendations:

As he [the Special Rapporteur] has pointed out, impunity of the perpetrators is at the heart of the problem, whether by leaving detainees at the unsupervised mercy of their captors and interrogators without access to the outside world (incommunicado detention), thus ensuring that evidence of the crime of torture will not emerge, or by other means of manipulating the criminal justice system so as to prevent torturers from being brought to justice. This may be done by passing laws aimed at relieving the perpetrators from criminal responsibility (amnesties, acts of indemnity and so on), that is, de jure impunity, or by procedural means of blocking the workings of justice, that is, de facto impunity.

In the light of recent developments, the Special Rapporteur deems it useful to address measures that can be taken by the international community to help end impunity for human rights crimes such as torture. Most topical is the process currently under way of drafting a statute for an International Criminal Court. This is a very positive development as the world approaches the twenty-first century.

Accordingly, the Special Rapporteur believes that the creation of an International Criminal Court with the characteristics described would be a monumental step towards the realization of international justice, not least because it would, in principle, permit an organ of the international community to override de jure or de facto impunity at the national level.

The Special Rapporteur, therefore, urges all States to review their legislation with a view to ensuring that they can exercise criminal jurisdiction over any person in their hands suspected of torture or, indeed, of any crime falling within the notions of war crimes or crimes against humanity as understood above.

Report A/54/426 - 1 October 1999
On the question of impunity:	47. Both the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment establish an obligation for the State to carry out an impartial investigation, even if there has been no formal complaint, where there is reasonable ground to believe that an act of torture has been committed. Further, States have an obligation to ensure that all acts of torture are offences under its criminal law and that these offences shall be punishable by appropriate penalties. Moreover, any person alleged to have committed such an offence shall be taken into custody or shall have other legal measures taken against him to ensure his presence. 48. The Special Rapporteur is of the view that impunity continues to be the principal cause of the perpetuation and encouragement of human rights violations and, in particular, torture. The Special Rapporteur is in agreement with his colleague, the Special Rapporteur on extrajudicial, summary or arbitrary executions, that even if in exceptional cases Governments may decide that perpetrators should benefit from measures that would exempt them from or limit the extent of their punishment, the obligation of Governments to bring them to justice and hold them formally accountable stands (see A/51/457, para. 120).

On compensation and rehabilitation	49. Both the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provide that a State should ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full a rehabilitation as possible. 50. In this regard, the Special Rapporteur calls upon all States to support to the maximum extent possible the United Nations Voluntary Fund for Victims of Torture. Further, all States should support and assist rehabilitation centres that may exist in their territory to ensure that victims of torture are provided the means for as full a rehabilitation as possible.

Manual	The Special Rapporteur also informed the Commission of the progress being made towards a manual for states, intended to serve as international guidelines for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture, and for reporting such findings to the judiciary and other investigative bodies. While the manual was developed to enable States to address the problem of effective documentation, it is also intended to apply to other contexts including human rights investigations and monitoring by intergovernmental and non-governmental organizations, evaluations of applications for political asylum, the defence of individuals who "confess" to crimes during torture, and needs assessments for the care of torture victims. (paras 53-55)

Recommendations:	68. (b) That all States enact the necessary legislation to ensure that all acts of torture are offences under its criminal law, and that these offences are punishable by appropriate penalties which take into account their grave nature;(e) That all States carry out a prompt and impartial investigation wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction;(g) That all States should ensure that in its legal system the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full a rehabilitation as possible;

Annex: Principles on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment :	1. The purposes of effective investigation and documentation of torture and other cruel, inhuman or degrading treatment (hereafter torture or other ill-treatment) include the following: (i) Clarification of the facts and establishment and acknowledgment of individual and State responsibility for victims and their families; (ii) Identification of measures needed to prevent recurrence; (iii) Facilitating prosecution and/or, as appropriate, disciplinary sanctions for those indicated by the investigation as being responsible, and demonstrating the need for full reparation and redress from the State, including fair and adequate financial compensation and provision of the means for medical care and rehabilitation. 2. States shall ensure that complaints and reports of torture or ill-treatment shall be promptly and effectively investigated. Even in the absence of an express complaint, an investigation should be undertaken if there are other indications that torture or ill-treatment might have occurred. The investigators, who shall be independent of the suspected perpetrators and the agency they serve, shall be competent and impartial. They shall have access to, or be empowered to commission investigations by impartial medical or other experts. The methods used to carry out such investigations shall meet the highest professional standards, and the findings shall be made public. 3 (a). The investigative authority shall have the power and obligation to obtain all the information necessary to the inquiry.a The persons conducting the investigation shall have at their disposal all the necessary budgetary and technical resources for effective investigation. They shall also have the authority to oblige all those acting in an official capacity allegedly involved in torture or ill-treatment to appear and testify. The same shall apply to any witness. To this end, the investigative authority shall be entitled to issue summonses to witnesses, including any officials allegedly involved, and to demand the production of evidence. 3 (b). Alleged victims of torture or ill-treatment, witnesses, those conducting the investigation and their families shall be protected from violence, threats of violence or any other form of intimidation that may arise pursuant to the investigation. Those potentially implicated in torture or ill-treatment shall be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as those conducting the investigation. 4. Alleged victims of torture or ill-treatment and their legal representatives shall be informed of, and have access to any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence. 5 (a). In cases in which the established investigative procedures are inadequate because of insufficient expertise or suspected bias, or because of the apparent existence of a pattern of abuse, or for other substantial reasons, States shall ensure that investigations are undertaken through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognized impartiality, competence and independence as individuals. In particular, they shall be independent of any suspected perpetrators and the institutions or agencies they may serve. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided for under these Principles. 5 (b). A written report, made within a reasonable time, shall include the scope of the inquiry, procedures and methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. On completion, this report shall be made public. It shall also describe in detail specific events that were found to have occurred, the evidence upon which such findings were based, and list the names of witnesses who testified with the exception of those whose identities have been withheld for their own protection. The State shall, within a reasonable period of time, reply to the report of the investigation and, as appropriate, indicate steps to be taken in response.

Interim Report A/55/290 - 11 August 2000

On reparation:

25. The annex to the final report (E/CN.4/2000/62) of the independent expert of the Commission on Human Rights on the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, Cherif Bassiouni, contains the text of the basic principles and guidelines on the right to a remedy and reparation for victims of violations of international law and humanitarian law, which are said to reflect either existing international law or emerging norms on that matter.

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 non-repetition (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 against Torture to apply universal jurisdiction in respect of alleged perpetrators of torture (articles 5 and 7) and to make torture a crime under domestic law (article 4). He further recalls the latest resolution adopted by the Commission on Human Rights on the question of torture (resolution 2000/43), in which the Commission stressed the general responsibility of all States to investigate allegations of torture and to ensure that those who encourage, order, tolerate or perpetuate such acts are held responsible. Case law under the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the American Convention on Human Rights indicates that a failure to prosecute, or at least a failure to investigate in a manner which potentially leads to prosecution, is incompatible with the responsibilities of States under these conventions. He similarly recalls the adoption on 17 July 1998 of the Rome Statute of the International Criminal Court, the preamble of which expressly states that the establishment of the Court is fuelled by the determination to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes. It stresses that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation. It further provides that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. In the light of the above, it is the view of the Special Rapporteur that States may now exercise universal jurisdiction over the alleged perpetrators of torture.

33. In that context, the Special Rapporteur welcomes the decision of the House of Lords, the highest court in the United Kingdom, which concluded in March 1999 that Augusto Pinochet Ugarte, former head of State of Chile, was not immune from being extradited to Spain to stand trial on charges of human rights abuses, including torture. The House of Lords determined by reference to the Convention against Torture that immunity was inconsistent with the wording of the Convention. Similarly, the Special Rapporteur is pleased to note the decision by the Chilean Supreme Court to strip General Pinochet of his immunity, clearing the way for his future trial in connection with a notorious military death squad believed to be responsible for the deaths of 72 political prisoners. The Special Rapporteur recently expressed his concern, with the Special Rapporteur on the independence of judges and lawyers, to the Government of Senegal over the circumstances surrounding the recent dismissal of charges of being an accomplice to torture against the former President of Chad, Hissène Habré.

Interim Report A/56/156 - 3 July 2001
On impunity:	26. The Special Rapporteur has noted in the past that the single most important factor in the proliferation and continuation of torture is the persistence of impunity, be it of a de jure or de facto nature. Causes of impunity of a de jure nature encompass measures relieving perpetrators of torture of legal liability, inter alia, by providing an unrealistically short period of prescription, adopting acts of impunity or by granting amnesties to perpetrators of grave violations of human rights. It is with regard to the granting of amnesties that the Special Rapporteur wishes to review the recent developments in international law on the question of the compatibility of amnesties with States' international obligations to combat torture. 27. The Special Rapporteur would like to draw Governments' attention to the Vienna Declaration and Programme of Action, which stipulates that "States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law". The Special Rapporteur further notes the report "Question of the impunity of perpetrators of human rights violations (civil and political)", prepared by Mr. Louis Joinet of the Subcommission on Prevention of Discrimination and Protection of Minorities, pursuant to Subcommission decision 1996/119, which states that "amnesty cannot be accorded to perpetrators of violations before the victims have obtained justice by means of an effective remedy" and that "the right to justice entails obligations for the State: to investigate violations, to prosecute the perpetrators and, if their guilt is established, to punish them". As requested by the Subcommission in its decision 1996/119, Mr. Joinet drafted a set of principles for the protection and promotion of human rights through action to combat impunity, in which he states that "there can be no just and lasting reconciliation unless the need for justice is effectively justified" and that "national and international measures must be taken ... with a view to securing jointly, in the interests of the victims of human rights violations, observance of the right to know and, by implication, the right to the truth, the right to justice and the right to reparation, without which there can be no effective remedy against the pernicious effects of impunity". The Set of Principles further states that "even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds: (a) the perpetrators of serious crimes under international law may not benefit from such measures until such time as the State has met" their "obligations to investigate violations, to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that they are prosecuted, tried and duly punished, to provide victims with effective remedies and reparation for the injuries suffered, and to take acts to prevent the recurrence of such violations". 28. The Special Rapporteur wishes to stress the duty of States to bring to justice perpetrators of torture as an integral part of the victims' right to reparation, as noted by Mr. Joinet, of the Subcommission on Prevention of Discrimination and Protection of Minorities, and the last independent expert of the Commission on Human Rights on the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, Mr. M. Cherif Bassiouni, in their reports and in the Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law. In his final report, Mr. Bassiouni revised the basic principles and guidelines, holding that 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. He furthermore stated that "violations of international human rights and humanitarian law norms that constitute crimes under international law carry the duty to prosecute persons alleged to have committed these violations, to punish perpetrators adjudged to have committed these violations, and to cooperate with and assist States and appropriate international judicial organs in the investigation and prosecution of these violations". 29. The Special Rapporteur further wishes to refer to the jurisprudence of the Human Rights Committee, which, in its General Comment 20, of 3 April 1992, on the prohibition of torture, concluded that amnesties are generally incompatible with the duty of States to investigate such acts of torture; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in future. In the case of Hugo Rodríguez v. Uruguay, the Committee reaffirmed its position that amnesties for gross violations of human rights are incompatible with the obligations of the State party under the Covenant and expressed concern that in adopting the amnesty law in question, the State party has contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further human rights violations. The Special Rapporteur notes that, in its conclusions and recommendations following the review of the third periodic report of Peru, the Committee against Torture expressed concern about "the use of, in particular, the amnesty laws which preclude prosecution of alleged torturers who must, according to articles 4, 5 and 12 of the Convention, be investigated and prosecuted where appropriate" and recommends that "amnesty laws should exclude torture from their reach". 30. The Special Rapporteur notes the extensive jurisprudence developed by the Inter-American Commission and Court of Human Rights on the question of amnesty legislation. The Inter-American Commission on Human Rights has condemned amnesty laws issued by democratic successor Governments in the name of reconciliation, even if approved by a plebiscite, and has held them to be in breach of the 1969 American Convention on Human Rights, in particular the duty of the State to respect and ensure rights recognized in the Convention (article 1(1)), the right to due process of law (article 8) and the right to an effective judicial remedy (article 25). The Commission held further that amnesty laws extinguishing both criminal and civil liability disregarded the legitimate rights of the victims' next of kin to reparation and that such measures would do nothing to further reconciliation. The Commission held that, as regards countries that had not ratified the American Convention on Human Rights at the time of the perpetration of human rights violations subject to the amnesty laws, the violations were incompatible with article XVIII (right to a fair trial) and with the above-mentioned provisions of the American Convention. Finally, the Commission clarified that new democratic Governments bear responsibility for the human rights violations of previous (military) regimes, in accordance with the principle of the State's continuing responsibility in international law, and hence for the non-revocation of a self-amnesty law, promulgated by a previous military dictatorship. 31. The Special Rapporteur would like to draw the attention of the General Assembly to a recent judgement of the Inter-American Court of Human Rights, Caso Barrios Altos, Chumbipuma Aguirre y otros v. Perú (14 March 2001). The Court held that amnesty provisions, prescription and the exclusion of responsibility which have the effect of impeding the investigation and punishment of those responsible for grave violations of human rights, such as torture, summary, extrajudicial or arbitrary executions, and enforced disappearances, are prohibited as contravening human rights of a non-derogable nature recognized by international human rights law. The Court considered the laws in question to be in violation of the duty on the State to give domestic legal effect to the rights contained in the Convention (article 2). The Court held further that the self-amnesty laws lead to the victims' defencelessness and to the perpetuation of impunity, and, for this reason, were manifestly incompatible with the letter and spirit of the Convention. The Court concluded by stating that as a consequence of the manifest incompatibility of the self-amnesty laws with the Inter-American Convention on Human Rights, the laws concerned have no legal effect and may not continue representing an obstacle to the investigation of the facts of the case, nor for the identification and punishment of those responsible. 32. The Special Rapporteur would also like to draw the attention of the General Assembly to the fact that, in conjunction with the Special Rapporteurs on extrajudicial, summary or arbitrary executions and on the independence of judges and lawyers, and with the Chairman of the Working Group on Enforced or Involuntary Disappearances, he had sent a communication to the Government of Peru regarding the amnesty laws promulgated in June and July 1995. The Special Rapporteurs considered, inter alia, that those laws denied the right to an effective remedy for victims of human rights violations and, therefore, were contrary to the spirit of various international human rights instruments. 33. In the light of the consistent international jurisprudence suggesting that the prohibition of amnesties leading to impunity for serious human rights has become a rule of customary international law, the Special Rapporteur expresses his opposition to the passing, application and non-revocation of amnesty laws (including laws in the name of national reconciliation, the consolidation of democracy and peace, and respect for human rights), which prevent torturers from being brought to justice and hence contribute to a culture of impunity. As before, he calls on States to refrain from granting or acquiescing in impunity at the national level, inter alia, by the granting of amnesties, such impunity itself constituting a violation of international law.

Recommendations	39. In his last report to the Commission on Human Rights (E/CN.4/2001/66) the Special Rapporteur revised the recommendations that he had compiled in 1994 (E/CN.4/1995/34) into one global recommendation - an end to de facto or de jure impunity. He would like to encourage States to reflect upon them as a useful tool in efforts to combat torture. A further revised version of the recommendations follows: (a) [.] Torture should be designated and defined as a specific crime of the utmost gravity in national legislation. In countries where the law does not give the authorities jurisdiction to prosecute and punish torture, wherever the crime has been committed and whatever the nationality of the perpetrator or victim (universal jurisdiction), the enactment of such legislation should be made a priority; (j) When a detainee or relative or lawyer lodges a torture complaint, an inquiry should always take place and, unless the allegation is manifestly ill-founded, public officials involved should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings. Where allegations of torture or other forms of ill-treatment are raised by a defendant during trial, the burden of proof should shift to the prosecution to prove beyond reasonable doubt that the confession was not obtained by unlawful means, including torture and similar ill-treatment. Serious consideration should also be given to the creation of witness protection programmes for witnesses to incidents of torture and similar ill-treatment which ought to extend fully to cover persons with a previous criminal record. In cases where current inmates are at risk, they ought to be transferred to another detention facility where special measures for their security should be taken. A complaint that is determined to be well founded should result in compensation to the victim or relatives. In all cases of death occurring in custody or shortly after release, an inquiry should be held by judicial or other impartial authorities. A person in respect of whom there is credible evidence of responsibility for torture or severe maltreatment should be tried and, if found guilty, punished. Legal provisions granting exemptions from criminal responsibility for torturers, such as amnesties, indemnity laws etc., should be abrogated. If torture has occurred in an official place of detention, the official in charge of that place should be disciplined or punished. Military tribunals should not be used to try persons accused of torture. Independent national authorities, such as a national commission or ombudsman with investigatory and/or prosecutorial powers, should be established to receive and to investigate complaints. Complaints about torture should be dealt with immediately and should be investigated by an independent authority with no relation to that which is investigating or prosecuting the case against the alleged victim. Furthermore, the forensic medical services should be under judicial or other independent authority, not under the same governmental authority as the police and the penitentiary system. Public forensic medical services should not have a monopoly of expert forensic evidence for judicial purposes. In that context, countries should be guided by the Principles on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment as a useful tool in the effort to combat torture;

E/CN.4/2002/76 - 27 December 2001
Recommendations:	(a) [.] Torture should be designated and defined as a specific crime of the utmost gravity in national legislation. In countries where the law does not give the authorities jurisdiction to prosecute and punish torture, wherever the crime has been committed and whatever the nationality of the perpetrator or victim (universal jurisdiction), the enactment of such legislation should be made a priority; (b) Countries should sign and ratify or accede to the Rome Statute of the International Criminal Court with a view to bringing to justice perpetrators of torture in the context of genocide, crimes against humanity and war crimes and at the same time ensure that their national courts also have jurisdiction over these crimes on the basis of universal jurisdiction; (j) When a detainee or relative or lawyer lodges a torture complaint, an inquiry should always take place and, unless the allegation is manifestly ill-founded, public officials involved should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings. Where allegations of torture or other forms of ill-treatment are raised by a defendant during trial, the burden of proof should shift to the prosecution to prove beyond reasonable doubt that the confession was not obtained by unlawful means, including torture and similar ill-treatment. Serious consideration should also be given to the creation of witness protection programmes for witnesses to incidents of torture and similar ill-treatment which ought to extend fully to cover persons with a previous criminal record. In cases where current inmates are at risk, they ought to be transferred to another detention facility where special measures for their security should be taken. A complaint that is determined to be well founded should result in compensation to the victim or relatives. In all cases of death occurring in custody or shortly after release, an inquiry should be held by judicial or other impartial authorities. A person in respect of whom there is credible evidence of responsibility for torture or severe maltreatment should be tried and, if found guilty, punished. Legal provisions granting exemptions from criminal responsibility for torturers, such as amnesties, indemnity laws etc., should be abrogated. If torture has occurred in an official place of detention, the official in charge of that place should be disciplined or punished. Military tribunals should not be used to try persons accused of torture. Independent national authorities, such as a national commission or ombudsman with investigatory and/or prosecutorial powers, should be established to receive and to investigate complaints. Complaints about torture should be dealt with immediately and should be investigated by an independent authority with no relation to that which is investigating or prosecuting the case against the alleged victim. Furthermore, the forensic medical services should be under judicial or other independent authority, not under the same governmental authority as the police and the penitentiary system. Public forensic medical services should not have a monopoly of expert forensic evidence for judicial purposes. In that context, countries should be guided by the Principles on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment as a useful tool in the effort to combat torture;

Annex III (Statement delivered by the Special Rapporteur on 8 November 2000) - On impunity	I have noted in the past that the single most important factor in the proliferation and continuation of torture is the persistence of impunity, be it of a de jure or de facto nature. Causes of impunity of a de jure nature encompass measures relieving perpetrators of torture of legal liability, inter alia by providing an unrealistically short period of prescription, adopting acts of indemnity, or by granting amnesties to perpetrators of grave violations of human rights. It is with regard to the granting of amnesties that I have reviewed the recent developments in international law on the question of the compatibility of amnesties with States' international obligations to combat torture. I would recall that the Vienna Declaration and Programme of Action stipulates that "States should abrogate legislation leading to impunity for those responsible for grave violations of human rights such as torture and prosecute such violations, thereby providing a firm basis for the rule of law." I would stress the duty of States to bring to justice perpetrators of torture as an integral part of the victims' right to reparation. In my report, I have drawn the attention of the General Assembly to the jurisprudence of various international and regional human rights monitoring bodies on that issue. In the light of this jurisprudence suggesting that the prohibition of amnesties leading to impunity for serious human rights violations has become a rule of customary international law, I express my opposition to the passing, application and non-revocation of amnesty laws (including laws in the name of national reconciliation, the consolidation of democracy and peace, and respect for human rights), which prevent torturers from being brought to justice and hence contribute to a culture of impunity. As before, I would call on States to refrain from granting or acquiescing in impunity at the national level, inter alia by the granting of amnesties, such impunity itself constituting a violation of international law.

Report A/57/173 - 2 July 2002

On immunity under anti-terrorist legislation

25. [.] Thus, it is reported that laws provide for immunity from prosecution for any authority on whom powers have been conferred under the concerned anti-terrorist laws, for anything which is done in good faith. It is feared that such provisions may effectively constitute an offer of impunity to law enforcement agents who use torture or cruel, inhuman or degrading treatment during interrogations. The term "good faith", for example, is in this context extremely wide-ranging and subjective. It could even be claimed that torture of an arrested person suspected of terrorist activities is an act done in good faith, for example, for the purpose of the fight against terrorism.

26. The Special Rapporteur reminds States parties of their obligations under the Convention against Torture to ensure that "all acts of torture are offences under [their] criminal law" (article 4); that "its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under [their] jurisdiction" (article 12); and that "any individual who alleges he has been subjected to torture in any territory under [their] jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities" (article 13). In that respect, the following recommendations made by his predecessor are pertinent: when a detainee or relative or lawyer lodges a torture complaint, an inquiry should always take place and, unless the allegation is manifestly ill-founded, public officials involved should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings; a person in respect of whom there is credible evidence of responsibility for torture or severe maltreatment should be tried and, if found guilty, punished; and legal provisions granting exemptions from criminal responsibility for torturers, such as amnesties or indemnity laws should be abrogated.

E/CN.4/2003/68 - 17 December 2002

Recommendations:

(a) [.] Torture should be designated and defined as a specific crime of the utmost gravity in national legislation. In countries where the law does not give the authorities jurisdiction to prosecute and punish torture, wherever the crime has been committed and whatever the nationality of the perpetrator or victim (universal jurisdiction), the enactment of such legislation should be made a priority;

(b) Countries should sign and ratify or accede to the Rome Statute of the International Criminal Court with a view to bringing to justice perpetrators of torture in the context of genocide, crimes against humanity and war crimes;

(d) The highest authorities should publicly condemn torture in all its forms whenever it occurs. The highest authorities, in particular those responsible for law enforcement activities, should make public the fact that those in command of arresting officers or in charge of places of detention at the time abuses are perpetrated will be held personally responsible for the abuses. In order to give effect to these recommendations, the authorities should, in particular, make unannounced visits to police stations, pre-trial detention facilities and penitentiaries known for the prevalence of such treatment. Public campaigns aimed at informing the population at large, in particular marginalized and vulnerable segments of society, of their rights with respect to arrest and detention, notably to lodge complaints regarding treatment received at the hands of law enforcement officials, should be undertaken;

(e) [.] It should be a punishable offence for any official to hold a person in a secret and/or unofficial place of detention [.];

(g) [.] The practice of blindfolding and hooding often makes the prosecution of torture virtually impossible, as victims are rendered incapable of identifying their torturers. That practice should be forbidden [.];

(k) When a detainee or relative or lawyer lodges a torture complaint, an inquiry should always take place and, unless the allegation is manifestly ill-founded, the public officials involved should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings. Where allegations of torture or other forms of ill treatment are raised by a defendant during trial, the burden of proof should shift to the prosecution to prove beyond reasonable doubt that the confession was not obtained by unlawful means, including torture and similar ill-treatment. Serious consideration should also be given to the creation of witness protection programmes for witnesses to incidents of torture and similar ill-treatment which ought to extend fully to cover persons with a previous criminal record. In cases where current inmates are at risk, they ought to be transferred to another detention facility where special measures for their security should be taken. A complaint that is determined to be well founded should result in compensation being paid to the victim or relatives. In all cases of death occurring in custody or shortly after release, an inquiry should be held by judicial or other impartial authorities. A person in respect of whom there is credible evidence of responsibility for torture or severe maltreatment should be tried and, if found guilty, punished. Legal provisions granting exemptions from criminal responsibility for torturers, such as amnesty laws (including laws in the name of national reconciliation or the consolidation of democracy and peace), indemnity laws, etc. should be abrogated. If torture has occurred in an official place of detention, the official in charge of that place should be disciplined or punished. Military tribunals should not be used to try persons accused of torture. Independent national authorities, such as a national commission or ombudsman with investigatory and/or prosecutorial powers, should be established to receive and to investigate complaints. Complaints about torture should be dealt with immediately and should be investigated by an independent authority with no connection to that which is investigating or prosecuting the case against the alleged victim. Furthermore, the forensic medical services should be under judicial or another independent authority, not under the same governmental authority as the police and the penitentiary system. Public forensic medical services should not have a monopoly on expert forensic evidence for judicial purposes. In that context, countries should be guided by the Principles on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (the Istanbul Principles) as a useful tool in the effort to combat torture;

(l) Legislation should be enacted to ensure that the victim of an act of torture obtains redress and fair and adequate compensation, including the means for the fullest rehabilitation possible. Adequate, effective and prompt reparation proportionate to the gravity of the violation and the physical and mental harm suffered should include the following elements: restitution, compensation, rehabilitation (including medical and psychological care as well as legal and social services), and satisfaction and guarantees of non-repetition. Such legislation should also provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her retraumatization in the course of legal and administrative procedures designed to provide justice and reparation;

(n) [.] Governments and professional medical associations should take strict measures against medical personnel that play a role, direct or indirect, in torture. Such prohibition should extend to such practices as examining detainees to determine their "fitness for interrogation" and procedures involving ill-treatment or torture, as well as providing medical treatment to ill-treated detainees so as to enable them to withstand further abuse. In other cases, the withholding of appropriate medical treatment by medical personnel should be subject to sanction[.]

E/CN.4/2004/56 - 23 December 2003

Guarantees for individuals deprived of their liberty:

40. In the exercise of his functions, the Special Rapporteur continues to receive allegations that no adequate measures have been taken after complaints of torture have been brought to the attention of the competent authorities. The Special Rapporteur is concerned that this may facilitate cases of impunity and jeopardizes the right to seek and receive remedy. The Special Rapporteur again draws the attention of the Commission to the recommendation he made in this connection: "When a detainee or relative or lawyer lodges a torture complaint, an inquiry should always take place and, unless the allegation is manifestly ill-founded, the public officials involved should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings. [.] A complaint that is determined to be well founded should result in compensation being paid to the victim or relatives. In all cases of death occurring in custody or shortly after release, an inquiry should be held by judicial or other impartial authorities. A person in respect of whom there is credible evidence of responsibility for torture or severe maltreatment should be tried and, if found guilty, punished. Legal provisions granting exemptions from criminal responsibility for torturers, such as amnesty laws (including laws in the name of national reconciliation or the consolidation of democracy and peace), indemnity laws, etc. should be abrogated. If torture has occurred in an official place of detention, the official in charge of that place should be disciplined or punished. Military tribunals should not be used to try persons accused of torture. Independent national authorities, such as a national commission or ombudsman with investigatory and/or prosecutorial powers, should be established to receive and to investigate complaints. Complaints about torture should be dealt with immediately and should be investigated by an independent authority with no connection to that which is investigating or prosecuting the case against the alleged victim. Furthermore, the forensic medical services should be under judicial or another independent authority, not under the same governmental authority as the police and the penitentiary system. Public forensic medical services should not have a monopoly on expert forensic evidence for judicial purposes. In that context, countries should be guided by the principles on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (the Istanbul Principles) as a useful tool in the effort to combat torture" (ibid., para. 26 (k)). The Special Rapporteur strongly recommends that States consistently implement the Istanbul Principles.