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 legal duty under international law to provide effective human rightsprotection comprises the obligation to ensure that effective domesticremedies are available to victims of human rights violations.This means that it is not sufficient for a remedy to be available under acountry’s constitution or other legislation. It must exist in practice and beallowed to function freely.To be able to provide effective remedies, the authorities concerned,including the courts and the legal professions in general, must therefore becompetent, independent and impartial.States should endeavour to develop judicial remedies for allegedviolations of human rights.In order to be effective, the exercise of a remedy must not be hindered byacts or omissions of the State concerned.While effective remedies must exist for all violations of human rights,their prompt and unhindered exercise is particularly important in the caseof grievances suffered by persons deprived of their liberty, whose life andpersonal health and security must be protected at all times.To deprive a detained person of his or her right to bring complaintsregarding, for example, unlawful deprivation of liberty or torture or otherforms of ill-treatment amounts to placing the person concerned in a legalvacuum where he or she has no possibility of redress. Such a situation is amanifest violation of a State’s legal obligations under internationalhuman rights law.Effective domestic remedies must also be ensured for complaints ofdiscrimination such as alleged racial and gender-based discrimination,including acts of violence arising either in the domestic or in the publicsphere.It is the professional responsibility of all judges, prosecutors and lawyersto ensure that claims of human rights violations are addressed effectivelyand with due diligence.3.5 The duty to investigate, prosecute and punishAs previously noted, the duty to investigate, prosecute and punish humanrights violations is also inherent in States’ general responsibility to ensure effectivehuman rights protection and it is a duty that has been consistently emphasized by theinternational monitoring bodies. As this duty is not always expressly defined in thetreaties concerned, it will be analysed below principally in the light of a selection of themany comments and judgments of these bodies that invoke the obligation toinvestigate, prosecute and punish violations of the rights and freedoms of theindividual.792 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 Violations3.5.1 The universal levelIn General Comment No. 20 on article 7 of the International Covenant onCivil and Political Rights, the Committee noted, in general, “that it is not sufficient forthe implementation of article 7 to prohibit such treatment or to make it a crime. Statesparties should inform the Committee of the legislative, administrative, judicial andother measures that they take to prevent and punish acts of torture and cruel, inhumanand degrading treatment in any territory under their jurisdiction.” 139In the Chongwe case, a Zambian police officer had shot “and barely missedkilling” the author who was not formally deprived of his liberty. According to theHuman Rights Committee, the State party “refused to carry out independentinvestigations, and the investigations initiated by the Zambian police [had] still not beenconcluded and made public, more than three years after the incident”. 140 Furthermore,no criminal proceedings had been initiated and the author’s claim for compensationappeared to have been rejected. The author’s right to security under article 9(1) of theCovenant had therefore been violated. 141With regard to Zambia’s obligations under article 2(3)(a) of the Covenant, theCommittee concluded that:“the State party is under the obligation to provide Mr Chongwe with aneffective remedy and to take adequate measures to protect his personalsecurity and life from threats of any kind. The Committee urges the Stateparty to carry out independent investigations of the shooting incident, andto expedite criminal proceedings against the persons responsible for theshooting. If the outcome of the criminal proceedings reveals that personsacting in an official capacity were responsible for the shooting and hurtingof the author, the remedy should include damages to Mr Chongwe. TheState party is under an obligation to ensure that similar violations do notoccur in the future.” 142The Human Rights Committee also expressed concern “at the lack of action”by Venezuela to deal with disappearances that occurred in 1989, noting that thestatement to the effect that investigations of the disappearances were “being pursued”was unsatisfactory. 143 “Taking into account the provisions of articles 6, 7 and 9 of theCovenant, the State party should give special priority to rapid and effectiveinvestigations designed to determine the whereabouts of the disappeared persons andthose responsible for disappearances. The State party should also take all necessarymeasures to prevent disappearances, including adoption of the legislation described inarticle 45 of the Constitution.” 144 The Committee was also “gravely concerned at themany reports of extrajudicial executions” in Venezuela and the failure of the State partyto deal with them. “The State party should conduct investigations to identify those139 United Nations Compilation of General Comments, p. 140, para. 8.140 Communication No. 821/1998, R. Chongwe v. Zambia, (Views adopted on 25 October 2000), in UN doc. GAOR, A/56/40(vol. II), p. 142, para. 5.3.141 Ibid., loc. cit.142 Ibid., p. 143, para. 7.143 UN doc. GAOR, A/56/40 (vol. I), p. 49, para. 6.144 Ibid., loc. cit.Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 793
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