|Economic and Social||Distr.|
|18 January 1996|
COMMISSION ON HUMAN RIGHTS
Item 8 of the provisional agenda
Right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms
Report of the Secretary-General prepared pursuant to Commission resolution 1995/34
The present report contains a summary of information submitted by the Governments of Cyprus and the United States of America
[21 December 1995]
No ad hoc legislation regarding restitution, compensation and rehabilitation of victims of grave violations of human rights has been adopted or is in the process of being adopted in Cyprus, the reason being that no problem of such violations exists or can be envisaged in Cyprus. This applies to the area under the de jure and de facto control of the Government of Cyprus. In the part of Cyprus which is under the occupation of Turkey, no measures for restitution, compensation and rehabilitation of the victims at any time during the period of the violations, i.e. the last 20 years, have yet been taken by Turkey, and there is no indication that such measures are to be taken in the future.
[5 January 1996]
1. The United States Constitution, and the constitutions of the several states and other constituent units, set forth essential guarantees of fundamental rights generally paralled to those set forth in the International Covenant on Civil and Political Rights. There is no single statute or mechanism by which fundamental freedoms are guaranteed or enforced in the United States legal system. Rather, domestic laws provide extensive protection through enforcement of constitutional provisions and a variety of statutes which typically provide for judicial and/or administrative remedies. This reply presents federal statutes already enacted. Because of their large number and variety, legislation of the several states of the union and pending federal legislation are not covered.
2. The strong commitment of the United States to the restitution, compensation and rehabilitation of victims of grave violations of human rights and fundamental freedoms is reflected in the United States Constitution and in several important federal statutes. This legislation primarily applies to violations occurring within the jurisdiction of the United States. The relevant statutes safeguard the fundamental rights of people in the United States in accordance with the tenets of the United States Constitution. A more detailed analysis of these and other relevant laws is set forth in the initial report of the United States of America to the Human Rights Committee under the International Covenant on Civil and Political Rights (CCPR/C/81/Add.4, 24 August 1994).
3. To the extent that gross violations of human rights or fundamental freedoms constitute violations of rights, privileges, or immunities secured by the United States Constitution, victims of such violations within the jurisdiction of the United States may obtain compensation for their injuries by suing the responsible government officers directly under the provisions of the Constitution. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971); Davis v. Passman, 442 U.S. 228 (1979). Moreover, because human rights violations contemplate government action or action under colour of law, victims of such violations also have statutory causes of action.
4. Principal among federal civil rights laws aimed at redressing violations of fundamental rights and freedoms is 42 U.S.C. 1983, which states:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory or the District of Colombia subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
5. Actions "under color of state law," within the meaning of Section 1983, may be perpetrated by federal, state, or local officials. However, some officials, such as judges, enjoy either absolute or qualified immunity. Bradley v. Fisher, 80 U.S. 335 (1972). Other officials enjoy qualified immunity only. Generally, prosecutors enjoy absolute immunity from suit for their involvement in the judicial phase of the criminal process but are afforded only qualified immunity for law enforcement functions. Burns v. Reed, 500 U.S. 478 (1991). Such immunity will not be afforded where an official has violated clearly established statutory or constitutional rights under circumstances in which a reasonable person would have known of the existence of the rights and of the violation. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
6. Section 1983 is invoked in private suits before the United States courts. Situations giving rise to Section 1983 actions include claims by prisoners that they have been subjected to cruel or unusual punishment, in violation of the Eighth Amendment; claims by arrested individuals that law enforcement officers used excessive force, in violation of the Fourth Amendment; and claims by individuals that state or local authorities have denied them equal protection of the laws, in violation of the Fifth and Fourteenth Amendments, through some form of arbitrary discrimination. The most common relief under Section 1983 is money damages, subject to the limitations of official immunity. Injunctive relief is also available and is widely used to provide relief under Section 1983.
7. Conspiracies to deny human rights and fundamental freedoms, apart from being punishable by criminal sanctions, may be redressed by civil suits for damages under 42 U.S.C. 1985. Where the right is one enumerated in the Constitution as being secured only from "state action", there must be official actors in the conspiracy. Brotherhood of Carpenters and Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825 (1983).
8. In addition to these federal remedies, the several states of the union have their own laws and judicial procedures by which official action may be challenged and compensation or other relief sought.
9. Another statutory remedy for violations of certain constitutional rights by governmental entities is provided by the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346 (b), 2671 et seq., and analogous state tort claim statutes. The FTCA waives the sovereign immunity of the United States with respect to certain torts. "Discretionary" acts and many "intentional" torts are not included, but the statute does waive the sovereign immunity of the United States with respect to claims arising out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution, based on the acts or omissions of "investigative or law enforcement officers" of the United States Government. The act defines an "investigative or law enforcement officer" as an officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of federal law. This definition may include Department of Defense personnel acting in a law enforcement capacity.
10. Under this statute, codified at 42 U.S.C. 1997, the Attorney-General of the United States may initiate civil actions when there is a reason to believe that a person, acting on behalf of a state or local government, has subjected an institutionalized person to "egregious or flagrant conditions which deprive such persons of any rights, privileges or immunities secured or protected by the Constitution or laws of the United States". Equitable relief provides the appropriate remedy in such suits.
11. The Equal Access to Justice Act, 28 U.S.C. 2412, allows a federal court to award costs and reasonable attorney's fees and expenses necessary to bring a suit for violation of civil rights. However, an award is made only where the court finds that the United States Government has, in fact, violated the individual's civil rights.
12. In addition to the civil remedies noted above, federal, state and local officials, we well as private persons, who violate the rights of others, may be subject to prosecution under a host of federal and State criminal statutes (for example, for murder, rape, assault, abduction, etc.). United States Department of Defense personnel may also be subject to criminal prosecution under the Uniform Code of Military Justice, 10 U.S.C. 801-946. The primary authority for federal criminal prosecution of human rights violations is found in 18 U.S.C. 241 and 242. Sections 241 and 242 provide a criminal analog to Sections 1983 and 1985, and allow the Attorney-General to prosecute individuals who violate fundamental rights under colour of law.
13. The Aliens Tort Claims Act of 1789 ("ATCA"), 28 U.S.C. 1350, represents an early effort by the United States Government to provide a remedy to individuals whose rights have been violated under international law. The ATCA provides that "the district courts shall have original jurisdiction in any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States".
14. Only aliens (non-United States citizens) may sue under the ATCA. The jurisdiction of the district courts to hear ATCA claims is limited by the constitutional requirements that the court obtain proper personal jurisdiction over the defendant: the perpetrator of the violation must be present within the territorial jurisdiction of the court or be subject to the court's longarm jurisdiction.
15. This statute was originally enacted to provide a remedy to individuals who suffered a "tort" at the hands of privateers seeking prize money under the law of admiralty. More recently, it has been applied to cases of human rights violations. See Filartiga v. Pena-Irala, 630 F.2d 774 (2d Cir. 1980).
16. The Torture Victims Protection Act of 1991 ("TVPA") 28 U.S.C. 1350 note, complements the ATCA. See H.R. Rep. No. 367, 102d Cong. 2d Sess. 4 (1992). While the ATCA only provides a remedy to foreign nationals, the TVPA allows both foreign nationals and United States citizens to sue for damages any individual who engages in torture or extrajudicial killing under "actual or apparent authority, or under color of law of any foreign nation. See Filartiga v. Pena-Irala, 630 F.2d 774 (2d Cir. 1980). However, foreign Governments are protected from suit in the United States by the Foreign Sovereign Immunities Act of 1976 and the Act of State Doctrine.
17. In addition to imposing criminal sanctions on international terrorists, the Anti-terrorism Act, 18 U.S.C. 2331 et seq., provides that victims of international terrorism may seek compensation for terrorist acts. Section 2333 allows any United States national injured in his or her person or property by international terrorism, or that person's heirs or survivors, to sue in a United States district court for damages. The Act provides for treble damages and litigation costs, including attorney's fees, to be awarded to successful claimants.
18. The statute also provides that any final judgement in the United States or in a foreign State in favour of the Government in a criminal proceeding against the alleged perpetrator on the same facts estops the defendant in a civil proceeding brought under 18 U.S.C. 2331 from denying the essential allegations made by the plaintiff in the civil proceeding.
19. The United States has also taken the initiative to provide compensation for past wrongs committed by the Government, even when the victim does not technically have a cause of action. For example, where times of crisis have resulted in a failure of the constitutional and legislative checks on government power, the United States has shown a willingness to compensate for wrongs done. Examples of these, include the following.
20. In December 1993, it became widely known that between 1944 and 1974, the United States Government conducted and sponsored a number of experiments involving exposure of humans to radiation. The United States Government has undertaken to examine the propriety of these experiments and to make public as much information about these experiments as possible. The President established an advisory committee on human radiation experiments under a January 1994 executive order. The United States Congress and the executive branch are currently considering the extent to which compensation may be appropriate in various cases. Individual and class-action lawsuits are also pending in some cases, most of which have been brought under the Federal Tort Claims Act, discussed above.
21. During the Second World War, the United States evacuated many Americans of Japanese origin from the west coast and relocated them to internment camps. In recent years, the United States Government has acknowledged that, while these measures may have resulted from legitimate concerns of national security, the evacuation and internment violated the civil rights of these American citizens. Accordingly, the United States Government has undertaken to provide restitution to those injured as a result of internment. Under Section 105 of the Civil Liberties Act of 1988, the United States Government must provide redress to American citizens and permanent resident aliens of Japanese ancestry who were forcibly evacuated, relocated, and interned by the United States Government during the Second World War.
22. Grave violations of human rights and fundamental freedoms are prohibited and strictly punished in the United States. The laws of the United States and the several states of the union provide many avenues for restitution, compensation and rehabilitation for those who have fallen victim to grave violations of human rights or fundamental freedoms either in the United States or abroad.
23. The Government of the United States remains committed to the
eradication of grave violations of human rights and fundamental
freedoms all over the world and to the promotion of the rights
of victims of such violations to restitution, compensation and