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1.1
Action at the international level
- 1.2 Action at the national level |
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Once you have finished collecting your raw information, you will need to think about choosing the most appropriate place to send it and how to present it in a way most likely to obtain the result you want. This chapter will identify and evaluate the courses of action which may be open to you, and provide some guidelines on how to make the best use of them.
Your first port of call should generally be to seek a remedy within the domestic system, particularly where the information concerns an individual case. For practical reasons, this handbook concentrates on obtaining remedies within the international system, but this should not be interpreted as meaning that domestic remedies should not be used. On the contrary, there are a number of reasons why they should be used wherever possible:
It is most appropriate to take action at the international level where:
At the international level, the range of mechanisms from which assistance can be sought in connection with allegations of torture and other forms of ill-treatment is very wide. The focus of the handbook, and of this part, is those international procedures to which information can be sent and whose job it is to comment on whether or not a state has respected its obligations relating to torture under international law. This is because they are responsible for supervising the implementation of the international system for the protection of human rights - it is through them that it is possible to invoke a state's obligations under international law in order to obtain a formal or official response to allegations of torture and obtain some form of remedy for the violation. It is important not to forget, however, that there are also additional sources of help to which it is possible to turn for advice, support or other forms of assistance, particularly if you feel uncomfortable about using a formal procedure. Such sources of help are addressed in Part III, Chapter 7.
Many possibilities exist for action at the international level. There are mechanisms which were created by the United Nations and can examine the situation of countries throughout the world. There are others which were created within a regional organisation and can only act in relation to states within that region. There are mechanisms which were created to consider only matters relating to torture (torture-specific) and others which are empowered to examine more general human rights issues, which include torture. The ways in which the mechanisms carry out their functions can also vary quite widely from one mechanism to the next. The best way to distinguish between the various bodies is to consider their origin (i.e. how they were created), and their functions.
Not every mechanism can be used in connection with every country. The origin of the mechanism is important because it tells you what countries it may receive allegations about. The main distinction is between treaty bodies and non-treaty mechanisms.
The origin of a mechanism can also limit the states under its supervision in a different way. Where a mechanism is created in the context of an inter-governmental organisation, it is normally intended to apply only to states which are members of that organisation. This applies both to treaty and non-treaty mechanisms. This means that:
Many of the bodies described in this handbook have more than one function. In particular, you should not think that they only receive individual allegations. Many of the mechanisms are also designed to address the wider situation, ultimately with a view to having preventive effects. It is important to understand the differences between the various functions because each responds to different forms of information and provides different types of remedies. This means that you need to make sure that, on the one hand, your information is in a form to which the mechanism can respond and that, on the other, the mechanism is able to provide you with the kind of remedy you want. The principal functions of the mechanisms can be broadly divided into two types: reporting functions and complaint procedures.
Reporting functions include:
Complaint procedures involve:
Table 1: Summary of International Mechanisms - By Origin and Function
|
Mechanism |
Origin |
Functions |
|||||||
|
Treaty |
Non-treaty |
Regional |
World-wide |
Reporting |
Individual Complaints |
||||
|
State Reports |
Monitoring |
Fact-finding |
Optional |
Compulsory |
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| Committee Against Torture |
Y |
United Nations |
Y |
Y |
Y |
||||
| Human Rights Committee |
Y |
United Nations |
Y |
Y |
|||||
| Committee on the Rights of the Child |
Y |
United Nations |
Y |
||||||
| Committee on the Elimination of Discrimination Against Women |
Y |
United Nations |
Y |
||||||
| Committee on the Elimination of Racial Discrimination |
Y |
United Nations |
Y |
Y |
|||||
| Special Rapporteurs of the UN Commission on Human Rights |
Y |
United Nations |
Y |
Y |
|||||
| 1503 Procedure |
Y |
United Nations |
Y |
||||||
| European Court of Human Rights |
Y |
Council of Europe |
Y |
||||||
| European Committee for the Prevention of Torture |
Y |
Council of Europe (see note 1) |
Y |
Y |
|||||
| Inter-American Commission on Human Rights |
Y |
Organisation of American States |
Y |
Y |
Y |
||||
| Inter-American Court of Human Rights |
Y |
Organisation of American States |
Y |
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| African Commission on Human and Peoples' Rights |
Y |
Organisation of African Unity |
Y |
Y |
Y |
Y |
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Note 1: It is possible that a protocol to the European Convention for the Prevention of Torture will be adopted in the near future which will make it possible for non-member states of the Council of Europe to become parties to the convention.
Note ?*: These functions will or may become available to these mechanisms in the near future. See mechanism-specific discussions for details.
In order to choose among the wide range of procedures which exist at the international level, you need to consider:
This will depend on the country about which you have information.
As previously discussed, the UN non-treaty mechanisms will be applicable to countries all over the world without any need for specific consent. However, both UN and regional bodies which have been created by treaty are, as a rule, applicable only to those states which have agreed to be bound by the treaty. In the case of regional bodies, this will normally be limited to states from the region.
In addition, some of the treaties which set up individual complaint procedures make these procedures optional for States Parties. In such cases, in order for the individual complaint procedure to be available in relation to a particular state, it is not sufficient for that state to become a party to the treaty, but it must also expressly consent to the procedure. This means that a state can be a party to a treaty which sets up an individual complaint procedure, but not allow those complaints against itself.
Furthermore, at the time of becoming a party to a treaty, states often have the opportunity to make a reservation to the treaty. Making a reservation means that the state has not accepted the exact terms of the treaty, but has modified one or more of its provisions to suit itself, as a condition of accepting the treaty. You should always check, not only if a state is a party to a treaty, but also if it has made any reservations to it, in case it is relevant to your case.
This means that, in order to determine which mechanisms will accept information about a particular country, you need to ask the following questions:
If it was:
If it was not: This will normally mean that it was set up by an inter-governmental organisation.
Once you have identified the mechanisms which are open to you, you will need to decide what you would like to achieve by submitting the information, in order to select the mechanism(s) most likely to fulfil your objectives. You could consider the following as a general guide:
Table 2: Suitability of Types of Mechanisms to Possible Objectives
| Possible objective | Type of mechanism most likely to achieve this |
| General Objectives: | |
| Draw attention to a situation/establish a pattern | Any reporting mechanism or complaint procedure |
| Seek positive changes in a general situation | Any reporting mechanism or complaint procedure |
| Combat impunity | Any reporting mechanism or complaint procedure |
| Individual Objectives: | |
| A finding of violation | Any complaint procedure |
| Holding a perpetrator to account | Any complaint procedure; reporting mechanisms which address individual allegations |
| Reparation | Complaint procedures which can award reparations |
| Preventing deportation of an individual to a country where there is a substantial belief that he or she will be at risk of torture | Complaint procedures which may order or recommend provisional measures; reporting mechanisms which address individual allegations |
There are as many variations in domestic remedies, their exact nature, form and procedures, as there are countries in the world. This handbook could never hope to address them in any comprehensive way without stretching to many more volumes. For this reason, this section will merely introduce some of the courses of action which you are most likely to come across within the domestic system, in order to raise awareness of their existence. You are, however, strongly advised to consult a domestic lawyer or more experienced national NGO to obtain details about the actual remedies available in a particular country, and the practicalities of using them.
Possible courses of action at the national level could include:
A person alleging that he or she has been the subject of ill-treatment by a public official can generally seek to initiate criminal proceedings by making a complaint to the police, the local public prosecutor or a local court. In many domestic legal systems, a prosecution will only be opened if the public prosecutor decides that it is appropriate, and a victim cannot directly institute proceedings. You will need to consult a domestic lawyer to find out exactly how the procedure works in the relevant system. The objective of criminal proceedings is the punishment of the offender, not the compensation of the victim, and possible remedies include sentencing the perpetrator to a fine, probation or imprisonment.
Military personnel can generally be prosecuted in the same way as any other official, but are also or may be subject only to internal military discipline, including the possibility of court-martial (trial of military personnel before a military court applying military law). Court-martial proceedings can only be initiated internally, but someone alleging torture or other ill-treatment by a member of the military could lodge a complaint with the appropriate senior officer who would, in an ideal world, then be in a position to initiate an investigation. It cannot be ignored that in a country where the military is in power, it is more likely that no investigation will be carried out, or that it will be ineffective. Nonetheless, failure on the part of a senior officer to initiate an investigation into an allegation of torture under military law could constitute a failure to investigate, as well as official tolerance of torture, so it is worth being aware of this means of investigation even if it cannot be initiated directly by a victim. It is also an offence under the international law of armed conflict (see Part I, Chapter 3.6), as it is the responsibility of commanders to investigate breaches of the laws of war by their subordinates.
Civil proceedings might be based on provisions in a national code of obligations, some form of legislation or on the common law. These provisions deal with many different issues, but they all involve a breach of some sort of the general duty which everyone has to exercise care in their relations with others. In general, civil proceedings are resorted to where an individual wishes to obtain compensation, usually financial, from the person responsible. The proceedings are judicial in nature and take place in the ordinary courts.
Examples of administrative remedies which might be relevant to a victim of torture could include an application to a compensation commission set up to provide compensation to victims of violent crimes, or a submission to a police complaints authority. Administrative proceedings do not necessarily take place before a regular judge. Instead they will often involve decision-making by expert tribunals or officials with special expertise or responsibility for a particular subject area.
For our purposes, the relevant disciplinary proceedings are those internal to the police, the military, other branches of the security forces and the state administration. These are non-judicial proceedings in which a case is considered by a superior or superiors of the public official. As with court-martial proceedings, a complaint can be lodged with a superior by a person alleging torture, but the decision to initiate proceedings may only be taken internally. The types of sanctions which may be imposed in disciplinary proceedings are normally related to the job, and could include withholding pay, temporary suspension from work, reassignment to another post or even dismissal.
The general nature of the asylum process is to identify people who have a well-founded fear of being persecuted if they are sent back to a particular country, usually their country of nationality. Under refugee and general human rights law, states have an obligation not to send such persons back to that country. In many cases, the basis for showing that they are likely to be subject to persecution will be to show that they are at risk of torture. In addition, States Parties to the Convention Against Torture have a separate obligation under human rights law not to expel a person to a country where there is a substantial belief that he or she will be at risk of torture.
In such cases, the objective will not be to establish that the state in which the person finds him or herself is responsible for an incident of torture, but to demonstrate that a risk exists if they are sent back, in order to activate the state's obligation not to expel the person. The specific requirements will vary from one country to the other but, as a general rule, it will be necessary to show that:
Where the risk of torture originates from non-governmental actors, it may be more difficult to establish it, but there is movement in favour of placing such risk in the same category as that originating from state actors for the purposes of the asylum process. (See Part I, Chapter 3.6)
If the application for asylum is rejected and a date set for deportation, you should be aware that a number of the international mechanisms are able to grant provisional measures which could include a request to the Government to delay deportation until they have considered the case. The Special Rapporteur on Torture has also intervened on occasion in such cases by sending an urgent appeal. None of these requests are binding, but they do give a respectable state some food for thought and are often complied with, at least temporarily.
In many countries, exceptional remedies exist under which individuals deprived of liberty are entitled to challenge the legality of their detention before a judicial authority which has the power to order their release. Common names for such remedies include habeas corpus and amparo. They may be initiated by an application to a court, either by the individuals themselves or, where this is not possible, by any other person acting on their behalf. In some systems, it may be necessary for this to be done by a lawyer. Such applications may generally be made at any time and should take priority over other court matters. Under international human rights law, these remedies should be available at all times, including during states of emergency. They are particularly important where an individual is being held in incommunicado detention, which is considered to increase the risk of torture.
Where an individual is believed to be at risk of torture during interrogation, it may also be possible to apply to a court for an injunction (an order to refrain from a particular type of conduct) against the relevant public officials.
In some countries, specialised official bodies may exist, the sole purpose of which is to examine or investigate possible violations of human rights. Some, such as ombudsman institutions and national human rights commissions, are concerned with current abuses, while others, such as truth commissions, have the specific task of investigating past crimes for a fixed period. The specific powers and procedures vary from one body to the next, but can normally be found in the piece of legislation which created it. Some may be able to take decisions in individual cases (certain national human rights commissions), while others may be more concerned with an overall situation (truth commissions). Not all of these bodies are as effective or independent as they might be.
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1.1
Action at the international level
- 1.2 Action at the national level |
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