Using Universal Jurisdiction
Owing to the fact that torture is an 'international crime,' there may be circumstances when the courts of one country are able to judge torture that was perpetrated elsewhere. The ability to bring a criminal prosecution for crimes perpetrated elsewhere will depend on how the country proposing to exercise jurisdiction have implemented their obligations under the Convention against Torture. In some cases, courts will only exercise extraterritorial jurisdiction when the alleged perpetrator is present in the Country or when there are some other links with the Country. Likewise, it may be possible to bring a civil claim for damages against a perpetrator for crimes committed abroad. There are complex rules relating to how and if such a perpetrator can be served and whether civil courts will proceed with the case. There are only few instances when civil claims can be lodged against a foreign state, and therefore it is usual to bring the claim against an individual perpetrator and/or an entity which can be said to have contributed to the perpetration of the human rights abuses.
Local Remedies for Torture
Torture is prohibited by most Constitutions and legal systems around the world. There are 132 states parties to the Convention against Torture,(1) a treaty that obliges parties to "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction;"(2) to "ensure that all acts of torture are offences under its criminal law;"(3) to extradite or prosecute alleged offenders;(4) and to "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 rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation."(5)
Bringing a case for reparation for torture in national courts is not usually a simple matter. Often there is no independent complaint mechanism to bring the allegation, and therefore survivors of torture may have to report incidents of torture to the same officials responsible for the torture. Survivors may have difficulty evidencing torture given that the practice is usually perpetrated behind closed doors and torturers are careful not to leave visible traces. In cases of state-sponsored torture, bringing a domestic claim for torture if the law provides for this may seem futile if perpetrators enjoy absolute impunity in practice. Even though the prohibition of torture has been clearly defined in the Convention against Torture, courts are, with notable exceptions, reluctant to use the Convention as a basis for their internal decisions in the absence of specific implementing legislation. Furthermore, judges and authorities often seem to be unaware of existing international standards or how to apply them in a domestic context.
In many countries, there is no specific criminal offence of torture. In those instances when there is an offence, it may not correspond with the definition of torture in Article 1 of the Convention against Torture. As a result, in some instances perpetrators of torture can only be punished for the commission of common crimes, e.g., abuse of office, assault, battery and sexual offences, which do not convey the specific seriousness of the offence and often carry significantly lower punishments that are disproportionate to the acts committed. A number of countries provide immunity for perpetrators of torture, or condition the investigation and/or prosecution of perpetrators on the consent of the Executive. Due to the fact that survivors rarely enjoy protection and procedural rights during criminal proceedings, they are often afraid to come forward, and when they do, the investigations rarely result in successful prosecutions.
Despite the difficulties, there are a growing number of instances when the odds have been beaten and claims for reparations have been successful. There are a number of types of challenges that can be brought in domestic courts, as follows:(6)
1. Criminal Prosecution of Perpetrators
A criminal prosecution can be lodged against alleged perpetrators of torture. In the typical case, following a complaint made by a survivor, an investigation into the allegation will be lodged by the competent investigative authority. If this investigative authority finds sufficient evidence to substantiate the allegation, a formal criminal complaint will be instituted, leading to a trial. In some cases, victims will have a right to institute a private prosecution against perpetrators of torture, meaning that they can bring the allegation to the attention of the competent Court on their own initiative. In many cases, in order for a private prosecution to proceed, official consent is needed. There are some examples when limitation periods have been used to disallow criminal proceedings into acts of torture. There are also instances where immunities have barred criminal proceedings against designated officials, notably in respect of situations of internal conflict when emergency laws have been employed. Certain countries applying Shari'a Law predicate punishment on a victim demand for punishment, which may possibly be retaliation or a payment in lieu.
2. Claim for Damages as Part of Criminal Prosecution
In most countries with a civil law tradition, it is possible for victims to lodge claims as 'partie civile', for damages resulting from the criminal act. In common law jurisdictions, it is sometimes possible for the court, when imposing a sentence of fine to order that the amount recovered be applied towards compensation."(7)
3. Civil Claim for Reparation
It is usually possible to lodge a civil claim for damages, using a number of causes of action such as false imprisonment, public misfeasance, or trespass to the person (assault and battery). In some cases, it will be possible to lodge a claim directly against the state and/or to allege the vicarious liability of the state, while in others it will not be possible to lodge a civil claim against the state, and claimants will be required to limit the suit to the individual responsible and/or his superior. There are a number of hurdles that potential claimants will undoubtedly face: relatively short limitation periods to lodge the claims; difficulties in securing evidence to substantiate the claim when there has been no criminal proceeding and problems with funding legal representation and/or court fees.
4. Constitutional Remedy for Breach of Fundamental Rights
In some countries it is possible to bring a constitutional claim for a breach of fundamental rights, including torture. This may lead to a declaratory judgment confirming the breach of the right and/or an award of compensation. In some cases, it may also lead to a more far-reaching remedy, such as a direction to strike out legislation that contravenes the Constitution or to amend laws or practices adjudged to have contributed to the fundamental rights breach.
5. State Compensation Laws
The administrative laws of some countries provide mechanisms for compensation by the State. These may be judicial or quasi-judicial mechanisms where state liability is determined. Alternatively, they may include non-judicial mechanisms such as criminal injuries compensation boards, where victims might be awarded compensation irrespective of liability.
6. National Human Rights Commissions
Many countries have established national human rights commissions and/or ombudsman institutions to deal specifically with allegations of human rights violations. The mandates and the degree of independence of such institutions vary considerably. In most instances, these Commissions will have the power to assess claims made by individuals and to recommend possible solutions, which may include the opening of a criminal investigation and/or prosecution, and compensation to victims.
- Ratification statistics for the Convention against Torture are taken from the UN High Commissioner for Human Rights, Status of Ratifications of the Principal Human Rights Treaties, as of 9 December 2002.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Adopted by General Assembly resolution 39/46 of 10 December 1984, Article 2(1).
- Ibid., Article 4(1).
- Id., Article 5(2).
- Id., Article 14(1).
- The nature of the remedies available for survivors of torture will vary country to country. What follows are examples of the types of remedies that may be available in any given country.
- See, for example, Section 357 (1)(b) and (c) of the Indian Code of Criminal Procedure.