The right to compensation for victims of torture

10 march 2016

“Heuristics” edition: “The right to compensation for victims of torture” is part of the LPRC project “Developing Independent Civil Remedies for Victims of Torture in Kazakhstan'' implemented with the support of Open Society Foundations (FOSI).

What is torture? Who and how to compensate the damage to victims of torture? What is being done in Kazakhstan to prevent torture? On these issues, the "Heuristics" program meets Tatiana Chernobil, independent consultant on international human rights law, Amnesty International consultant.

Torture – defined as the intentional infliction of severe pain or suffering to any person for the purpose of forcing him to do something, or to punish him for anything, including a crime of which he or she only suspected, or for any other reason based on discrimination.

For these deliberate actions that inflict severe pain or suffering to be regarded as torture, they must be executed by a “public official" I.e:

  • official person acting in an official capacity;

  • a private individual with the assistance of or consent, tacit or explicit, of the official, or the connivance of the official himself.

If a person is subjected to torture, the state must not only bring to justice and punish the perpetrators, thereby ensuring the inevitability of punishment, but also, and necessarily - to compensate the harm that was caused to the victim of torture.

What to do if you became a victim of torture?

1. Refer to the police with a statement.

Demand that your claim of torture be registered in the Unified Register of pre-trial investigations. All reports of criminal offenses are recorded in the Unified Register of pre-trial investigations, and accordingly, the investigation begins immediately. But torture is not always the case, because there is a special clause there: if there is insufficient evidence, they can initiate a review. And in the course of this test, in fact, not so much the arguments of the applicant are verified as traces of the crime being hidden. The victim is quickly manipulated so to hide traces of the crime. Indicate in a statement that torture was committed against you, because most of these messages are recorded as abuse of office.

Enter as many details as possible about what happened to you into the statement. People often write: "I was subjected to psychological and physical pressure." We need to paint what has been done to you. In the definition of torture, it is stated that these acts are committed with a purpose. This goal also needs to specify, what did they want from you. They wanted to punish you for something? Were they seeking obedience from you? Did they want to get a confession from you? It is necessary to specify.

Be sure to indicate that they were officials, if they were. Or if it were, say, inmates in prisons – this was done with the consent of the administration. In general, all matters relating to places of deprivation of liberty cannot be committed without the knowledge of the administration, because it is a closed institution. The administration should follow everything that is happening there.

2. Demand that an investigation has joined the prosecutor's office, special prosecutors.

As part of its supervisory powers, the prosecutor's office should investigate certain crimes, which include torture. We must demand that the prosecutor's office to conduct such investigations.

3. Demand that the examination was conducted.

It is necessary to require that traces of injuries are recorded at once, if any. Demand that you undergo an evaluation by a psychiatrist, and a conclusion from them. Because there are many cases - not in this country - where torture, even in the absence of traces, was confirmed by the conclusion of a psychologist or psychiatrist. This so-called "post-traumatic stress disorder." It is inherent as the survivors of war, soldiers and rape victims of torture have the same symptoms. A psychologist or psychiatrist can identify them.

4. Get a lawyer.

If there is a lawyer, it would be easier for the victim. It will not be that burdensome to pass all this, if there will be a lawyer.

Reparation for torture victims

International standards suggest several methods of redress for victims of crime, which are inflicted by the authorities. This can be restitution, rehabilitation, right to the truth (that is, the right to justice), a guarantee of non-repetition in the future and compensation. Payment can be obtained in the framework of criminal proceedings, which resulted in the guilty persons established, and within the framework of civil procedure when a person is drawn to the civil court for the order of him to compensate for the damage that was caused by officials.

In a number of the recommendations of the UN Committee to Kazakhstan, it was noted that reparation to victims of torture should be done regardless of the identification of persons who caused the torture. That is, without waiting for the results of the criminal proceedings, to bring the perpetrators to justice, the person may apply to the civil court and declare the claim for compensation for moral damages in civil proceedings. And the compensation should not be just compensation, it should be adequate to the harm that is suffered or born by people.

Expert advice

To help the victims of torture several years ago a Coalition, which includes 40 organizations and individual experts was created in Kazakhstan. The Coalition can handle victims of torture, and the Coalition will provide counsel, if needed, to help with the documents and find a psychologist.

The declared so-called "zero tolerance for torture in Kazakhstan" should be implemented in practice. And allegations of torture must be considered with all certainty, with all due care. There must be some presumption of authenticity of what a person says. Now law enforcement agencies, prosecutors and courts are beginning to doubt. They say that a person tries to avoid responsibility – if for example a man is accused of committing a crime, and then claims that he was tortured for a confession. Or if a convict is serving a sentence in prison – they may also say that, well, they are the troublemakers, and thus require a weakening regime. So the principle of zero tolerance to the allegations of torture does not work. The system begins to doubt when a person says they have been tortured.

In the first place, there must be an effective, fast, full response or reaction to the person making accusation of torture, so that the complainant does not have to prove it and the state does not have to disprove it.

Second, the whole treatment procedure, for example, to the civil court for compensation for moral damages should be as simple as possible for the victims of torture. It should be that torture is included in the category of the illegal actions of officials which suggest reparation. Currently, the Civil Code does not, that is, the illegal actions of officials - or rather, employees of bodies of inquiry, investigation and so on - include torture.

It is assumed redress for wrongful conviction, prosecution and so on, and that torture is not in this list. It is necessary that this list be expanded.




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26 january 2016