OX FOR D C OM M E N TA R I E S ON

I N T E R N AT ION A L L AW
General Editors: Professor Philip Alston, Professor of International Law
at New York University, and Professor Vaughan Lowe, Chichele Professor
of Public International Law in the University of Oxford and Fellow of
All Souls College, Oxford.

The United Nations Convention

Against Torture

A Commentary

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 The United Nations
Convention Against
Torture
A Commentary

M A N FR E D NOWA K
E L I Z A BE T H Mc A RT H U R

with the contribution of

Kerstin Buchinger
Julia Kozma
Roland Schmidt
Isabelle Tschan
Ludwig Boltzmann Institute of Human Rights Vienna

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 Article 14. Right of Torture Victims to Adequate Reparation 481

4. Issues of Interpretation
4.1 Meaning of the Terms Redress, Compensation, and
Rehabilitation
72 Article 11 of the 1975 Declaration and the IAPL draft used the terms
‘redress’ and ‘compensation’, the original Swedish draft only ‘compensation’.¹⁰⁰
During the discussions in the Working Group, many delegations stressed
that the right to compensation should be ‘as comprehensive as possible’.¹⁰¹ In
the course of the discussions, the right to ‘fair and adequate’ compensation
was added, and since ‘one-time monetary compensation might not suffice’,
it was agreed to add the words ‘including the means for as full rehabilitation
as possible’.¹⁰² First, it was proposed to make a reference to the 1979 General
Assembly Resolution 34/154 on the International Year of Disabled Persons as
a guide for the interpretation of the word ‘rehabilitation’, but the majority did
not wish to include a non-binding resolution in the text of a binding treaty. It
was made clear, however, that rehabilitation encompasses various measures,
including social and medical assistance.¹⁰³
73 This broad understanding is also reflected in the practice of the
Committee, both in the State reporting and the complaints procedure. In the
well-known Argentinean Punto Final cases, the Committee observed that the
democratic Government of Argentina is ‘morally bound to provide a remedy
to victims of torture and to their dependants, notwithstanding the fact that
the acts of torture occurred before the entry into force of the Convention’.¹⁰⁴
It urged the Government ‘not to leave the victims of torture and their depend-
ants without a remedy. If civil action for compensation is no longer possible
because the period of limitations for lodging such an action has run out, the
Committee would welcome, in the spirit of article 14 of the Convention, the
adoption of appropriate measures to enable adequate compensation.’¹⁰⁵ As an
example, the Committee mentioned specific pension schemes.¹⁰⁶
74 The leading case in this respect is Guridi v. Spain, decided in May
2005.¹⁰⁷ The victim had been tortured by three members of the Spanish Civil

¹⁰⁰ See above, 2.1.

¹⁰¹ See e.g. the Austrian comment in E/CN.4/1285.
¹⁰² See above, 2.2.
¹⁰³ Cf., e.g., the Danish statement in E/CN.4/1984/SR.33, §§ 53 and 54. See also Committee
member Sørensen in the State reporting procedure, above, para. 41.
¹⁰⁴ Nos. 1, 2 and 3/1988, § 9; see above, 3.2.
¹⁰⁵ Ibid.
¹⁰⁶ Ibid, § 10.
¹⁰⁷ No. 212/2002; see above, para. 70 and Art. 4, paras. 43, 54.

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 482 United Nations Convention Against Torture
Guard in 1992. Although a Spanish criminal court had in 1997 found all three
of them guilty and sentenced them to more than four years’ imprisonment and
to pay compensation of 500,000 pesetas to the complainant, they were later
pardoned by the Government and the King. The Committee found a violation
not only of Articles 2 and 4, but also of Article 14 in spite of the fact that the
Civil Guards had paid the compensation to the victim. It justified this hold-
ing by considering that ‘compensation should cover all the damages suffered
by the victim, which includes, among other measures, restitution, compen-
sation, and rehabilitation of the victim, as well as measures to guarantee the
non-repetition of the violations, always bearing in mind the circumstances of
each case’.¹⁰⁸
75 The Committee did not make an explicit reference to the 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, which were adopted on 16 December 2005
by the General Assembly after many years of drafting in the Sub-Commission
and in the Commission.¹⁰⁹ But the terminology used in this decision corre-
sponds broadly to that developed in the Guidelines. The Guidelines provide a
useful tool for interpreting the comprehensive right of victims of torture to a
remedy and reparation for the pain and suffering endured.
76 Although Article 14(1) uses different terminology, it constitutes a spe-
cific manifestation of the general right of victims of human rights violations to
a remedy and adequate reparation, as laid down in Article 2(3) CCPR¹¹⁰ and
similar provisions in regional human rights treaties. The right to a remedy
guarantees a procedural and a substantive claim. At the procedural level States
commit themselves to establishing suitable, i.e. primarily judicial, institutions
to take decisions during a procedure determined by the rule of law in order to
enable victims of torture to obtain redress, i.e. adequate reparation. In add-
ition to constitutional and special human rights courts, civil and criminal
courts may grant a legal remedy, as do ombuds-institutions, national human
rights commissions and special torture rehabilitation bodies. It is important
that the victims of torture themselves are entitled to initiate such procedures.
77 At the substantive level, the right to a remedy shall provide redress to
the torture victim, which means fair and adequate reparation for the pain and
humiliation suffered. What victims perceive as adequate reparation is different

¹⁰⁸ Ibid, § 6.8.

¹⁰⁹ GA Res. 60/147 of 16 December 2005.
¹¹⁰ Cf. Nowak, CCPR-Commentary, 62 et seq.

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 Article 14. Right of Torture Victims to Adequate Reparation 483
in each case and depends on the particular suffering and on the individual
sense of justice.¹¹¹ Usually, victims of torture are not primarily interested in
monetary compensation but in other means of reparation which are better
suited to restore their dignity and humanity. Often, a full and impartial inves-
tigation of the truth and the recognition of the facts, together with an apology
by the responsible individuals and authorities seem to provide more satisfac-
tion to the victim than monetary compensation.
78 The van Boven/Bassiouni Guidelines and Principles mentioned above
provide for different categories of reparation: restitution does not apply to tor-
ture victims as the suffering inflicted cannot be taken away any more. Since
victims of torture often suffer from long-term physical injuries and post trau-
matic stress disorders, various types of medical, psychological, social and legal
rehabilitation are usually best suited to provide relief. Long term rehabilitation
measures, which are often provided by special torture rehabilitation centres, are
fairly cost intensive,¹¹² and the respective costs should ideally be borne by the
individual perpetrators, their superiors and the authorities directly respon-
sible.¹¹³ If States provided effective remedies ensuring that the individual per-
petrators are held accountable to pay all the costs of long term rehabilitation
for torture victims, this would probably have a stronger deterrent effect than
criminal punishments. Nevertheless, the criminal prosecution of perpetrators
is often perceived by torture victims as the most effective means of satisfac-
tion. Since torture constitutes a particularly serious violation of human rights,
justice for the victim deserves appropriate punishment of the perpetrator. In
addition, criminal investigations serve the purpose of establishing the truth
and, thereby, pave the way for other forms of reparation.¹¹⁴ Guarantees of non-
repetition, such as amending relevant laws, fighting impunity, taking effect-
ive preventive or deterrent measures, constitute a proper form of reparation if
torture is practised in a widespread or systematic manner. Finally, monetary
compensation for the immaterial damage (pain and suffering) or material dam-
age (rehabilitation costs etc.) might provide satisfaction as an additional form
of reparation.

¹¹¹ See de Feyter et al.

¹¹² See the report of the Special Rapporteur on Torture to the Human Rights Council of
15 January 2007 in A/HRC/4/33, §§ 61–68.
¹¹³ Cf., e.g., the procedures before the Supreme Court of Sri Lanka: M.A.M. Sarjun v. Kamaldeen
(Reserve P.C.) 39753 Police Station, Habarana and two others; Wijenayake and others v. Amerasena
and others; Nalika Kumudini (on behalf of Malsha Kumari) v. Nihal Mahinda, O.I.C. Hungama Police
and others; Ratnasiri and Another v. Devasurendran, Inspector of Police, Slave Island and others.
¹¹⁴ See below, 4.2.

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