protection and redress for victims of crime and human rights violations

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Chapter 15 • Protection and Redress for Victims of Crime and Human Rights ViolationsThe use of effective domestic remedies for purposes of prevention has alsobeen underlined by the Inter-American Court, in particular with regard to the writ ofhabeas corpus, the aim of which “is not only to ensure respect for the right to personalliberty and physical integrity, but also to prevent the persons’s disappearance or thekeeping of his whereabouts secret and, ultimately, to ensure his right to life”. 97*****In the case of Kaya v. Turkey, which concerned the disappearance andsubsequent death following torture of the victim, the European Court of HumanRights made the following finding with regard to Turkey’s obligations under article 1 ofthe European Convention on Human Rights, read in conjunction with the prohibitionof torture in article 3:“115. The obligation imposed on High Contracting Parties under article1... to secure to everyone within their jurisdiction the rights and freedomsdefined in the Convention, taken together with article 3, requires States totake measures designed to ensure that individuals within their jurisdictionare not subjected to torture or inhuman or degrading treatment, includingsuch ill-treatment administered by private individuals ... State responsibilitymay therefore be engaged where the framework of law fails to provideadequate protection ... or where the authorities fail to take reasonable stepsto avoid a risk of ill-treatment which they knew or ought to have known ...116. The Court finds that the authorities knew or ought to have knownthat Hasan Kaya was at risk of targeting as he was suspected of givingassistance to wounded members of the PKK. The failure to protect his lifethrough specific measures and through the general failings in the criminallaw framework placed him in danger not only of extra-judicial executionbut also of ill-treatment from persons who were unaccountable for theiractions. It follows that the Government is responsible for ill-treatmentsuffered by Hasan Kaya after his disappearance and prior to his death.” 98An important conclusion of this judgment is that the duty to prevent humanrights violations comprises measures to protect people from being tortured not only byState officials but also by private persons. In simple terms, States must not put a personin a situation where he or she runs the risk of being subjected to treatment contrary toarticle 3 of the Convention.*****While the foregoing references and cases relating to the prevention of humanrights violations mainly concern particularly serious crimes such as torture, abductionand arbitrary deprivation of life, the obligation to prevent violations is equallyapplicable to all basic rights and freedoms recognized by national and international law.97 I-A Court HR, Suárez Rosero Case, judgment of November 12, 1997, Series C, No. 35, p. 75, para. 65.98 Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment of 28 March 2000, paras. 115-116 of the text of the judgment as publishedat http://echr.coe.int/782 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
Chapter 15 • Protection and Redress for Victims of Crime and Human Rights ViolationsThe duty to prevent violations of human rights is inherent in the legalduty to ensure their effective protection.Preventive measures may be of a legal, administrative, political, cultural,social, educational, remedial or other nature, depending on the problemand the country involved.The duty to prevent human rights violations entails a duty not to place aperson in circumstances where he or she is at risk of disappearing, beingtortured or arbitrarily killed, even if such illegal acts are committed byprivate individuals.3.4 The duty to provide domestic remediesAs seen above, the legal duty to provide domestic remedies for alleged victimsis inherent in the general duty to provide effective human rights protection. Practice hasconsistently and convincingly shown that, unless an individual has an effective right tohave recourse to independent and impartial courts or administrative authorities at thenational level for the purpose of remedying an alleged human rights violation, the trueenjoyment of human rights will remain illusory. From the point of view of States, theexistence of effective domestic remedies has the advantage of allowing them to remedya wrong, thus avoiding international responsibility and a possible rebuke from aninternational monitoring body.In this section, selected statements and decisions will provide a general idea ofthe importance that international monitoring bodies attach to the availability ofeffective remedies for violations of human rights at the national level.3.4.1 The universal levelAt the universal level, the right to domestic remedies was first included inarticle 8 of the Universal Declaration of Human Rights, which states that everyone “hasthe right to an effective remedy by the competent national tribunals for acts violatingthe fundamental rights granted him by the constitution or by law”. It was alsoincorporated in article 2(3) of the International Covenant on Civil and Political Rights,pursuant to which each State party to the Covenant undertakes:“(a) To ensure that any person whose rights or freedoms as hereinrecognized are violated shall have an effective remedy, notwithstandingthat the violation has been committed by persons acting in an officialcapacity;(b) To ensure that any person claiming such a remedy shall have his rightthereto determined by competent judicial, administrative or legislativeauthorities, or by any other competent authority provided for by the legalsystem of the State, and to develop the possibilities of judicial remedy;(c) To ensure that the competent authorities shall enforce suchremedies when granted.”Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 783
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protection and redress for victims of crime and human rights violations

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