The Prohibition of Torture and Ill-Treatment and the Right to an Effective Remedy

The right to an effective remedy plays an important role in relation to the prohibition of torture and ill-treatment. The major human rights conventions all contain provisions setting out the right to an effective remedy for violations of human rights. Article 2(3)ICCPR provides an example:

Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

The remedies in question need not necessarily be generated from a judicial authority; Article 13 ECHR sets out the right to ‘have an effective remedy before a national authority’ and the European Court has established, in Silver et al. v. The United Kingdom   (Application Nos. 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75, Judgement of 25 March 1983), that effective remedies can include those before executive and parliamentary bodies. Generally, an effective remedy must be ‘effective’ in the sense that it must establish clearly whether a violation has taken place and provide actual redress. Both the European Court and the Inter-American Court have established that remedies that cannot be resorted to because of the particular circumstances of the case or the general situation in the country shall not be considered effective; often, ineffective remedies regarding allegations of torture and ill-treatment can in themselves evidence that the practice is officially tolerated. In its Advisory Opinion on Judicial Guarantees in States of Emergency , the Inter-American Court elaborated on the obligation to provide an effective remedy to victims of human rights violations:

Article 25(1) incorporates the principle recognized in the international law of human rights of the effectiveness of the procedural instruments or means designed to guarantee such rights. As the Court has already pointed out, according to the Convention:

? States Parties have an obligation to provide effective judicial remedies to victims of human rights violations (Art. 25), remedies that must be substantiated in accordance with the rules of due process of law (Art. 8 (1)), all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdictions (Art. 1) (Velásquez Rodríguez, Fairen Garbi and Solís Corrales and Godínez Cruz Cases, Preliminary Objections, Judgments of June 26, 1987, paras. 90, 90 and 92, respectively).

According to this principle, the absence of an effective remedy to violations of the rights recognized by the Convention is itself a violation of the Convention by the State Party in which the remedy is lacking. In that sense, it should be emphasized that, for such a remedy to exist, it is not sufficient that it be provided for by the Constitution or by law or that it be formally recognized, but rather it must be truly effective in establishing whether there has been a violation of human rights and in providing redress. A remedy which proves illusory because of the general conditions prevailing in the country, or even in the particular circumstances of a given case, cannot be considered effective. That could be the case, for example, when practice has shown its ineffectiveness: when the Judicial Power lacks the necessary independence to render impartial decisions or the means to carry out its judgments; or in any other situation that constitutes a denial of justice, as when there is an unjustified delay in the decision; or when, for any reason, the alleged victim is denied access to a judicial remedy.

Furthermore, an effective remedy entails the duty to investigate allegations of violations and a failure to investigate could, in relation to torture and ill-treatment, lead to a violation of the provision prohibiting torture as well as the provision setting out an effective remedy (see for instance the European Court case McCann et al. v. The United Kingdom  , Application No. 18984/91, Judgement of 27 September 1995, abstracted in  the right to life).

In Aksoy v. Turkey  (Application No. 21987/93, Judgement of 18 December 1996) the European Court established the link between the prohibition of torture and ill-treatment and the right to an effective remedy as set out in Article 13 of the European Convention  :

98. The nature of the right safeguarded under Article 3 of the Convention (art. 3) has implications for Article 13 (art. 13). Given the fundamental importance of the prohibition of torture (see paragraph 62 above) and the especially vulnerable position of torture victims, Article 13 (art. 13) imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture.

Accordingly, as regards Article 13 (art. 13), where an individual has an arguable claim that he has been tortured by agents of the State, the notion of an “effective remedy” entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  , which imposes a duty to proceed to a “prompt and impartial” investigation whenever there is a reasonable ground to believe that an act of torture has been committed.

However, in the Court’s view, such a requirement is implicit in the notion of an “effective remedy” under Article 13 (art. 13) (see, mutatis mutandis, the Soering judgment cited at paragraph 62 above, pp. 34-35, para. 88).

The Human Rights Committee has discussed the right to an effective remedy in relation to the prohibition of torture and cruel treatment or punishment in General Comment 20 :

14. Article 7 should be read in conjunction with article 2, paragraph 3, of the Covenant. In their reports, States parties should indicate how their legal system effectively guarantees the immediate termination of all the acts prohibited by article 7 as well as appropriate redress. The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective. [?].

15. The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.

Similarly, in the case of Rodriguez v. Uruguay  (Communication No. 322/1988, Views of 19 July 1994), the Committee stated that wide-ranging amnesty laws can effectively preclude any investigation of violations committed by previous regimes, thereby denying victims an effective remedy. The Committee expressed concern that amnesty laws of this kind can contribute to ‘an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations’.

The African Commission has touched upon the link between the prohibition of torture and the right to an effective remedy in, inter alia, Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v. Sudan, Communications No. 48/90, 50/91, 52/91, 89/93, Thirteenth Activity report 1999-2000, Addendum). This case dealt with events that took place following a coup in 1989, inter alia, arbitrary arrests and detentions, torture and executions, allegedly carried out by militia groups believed to have close connections with and the support of the government:

56. The government does not deal with these allegations [of torture] in its report. The Commission appreciates the fact that the government has brought some officials to trial for torture, but the scale of the government’s measures is not commensurate with the magnitude of the abuses. Punishment of torturers is important, but so also are preventive measures such as halting of incommunicado detention, effective remedies under a transparent, independent and efficient legal system, and ongoing investigations into allegations of torture.

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