Aaf – best practice human rights framework

“difficult to obtain”, and that it “depends on who” is apologising. The Legal paper, on pages 84-85 includes suggestions for the form an apology should take. Annex 1 to the legal paper suggests a legislative mechanism for overcoming concerns from institutions on liability resulting from apologies. Research to support this framework also highlighted some views of survivors on the forms of apology which would satisfy them (research report, p 36) although of course each individual will have different wishes and needs.

124 Commemoration may be part of a reparations package although the results of the Scottish Government consultation, and research undertaken to support the development of this framework suggest some difference in views between survivors on commemoration (research report, p 35).

125 As noted above the initial announcement by Scottish Ministers of their intention to develop some form of truth commission suggested that it would have powers to “establish the facts”.

126 See legal paper, pages 108-111.

127 See legal paper, p 79.

128 UN Human Rights Committee, General Comment no. 31, para. 17.

129 Thlimmenos v Greece, Application No. 34369/97, 6 April 2000, para 44.

130 Proportionate limitations may be placed on e.g. minimum period of residence in child care.

131 While some participants in the Scottish Government’s consultation felt that only a limited group of survivors should be permitted to use the Forum (such as those with evidenced claims of abuse, or only those from institutions with a recorded history of abuse), such limitations risk excluding in practice people who would likely benefit from the Forum, and risk being discriminatory in practice.

132 legal paper, p 7.

133 Information from the Scottish Government seems to suggest that the Pilot Forum will be limited to those who have spent at least 5 days “as a resident” at any time until 2000. www.survivorscotland.org. The time period for the confidential committee in Ireland was open (in practice facts were recounted which related to the period of 1914 to 2000), for the investigations committee it was 1937 to present.

134 The research report suggests that those survivors who participated, as well as other people who participated in the research, feel “historic” is vague, and that choosing a cut off point is arbitrary. Research report p 7.

135 Survivors who participated in research to inform this framework did not feel that there should be any age-based differentiation (research report, p 33).

136 Legal paper, p 88.

137 The majority of respondents to the Scottish Government consultation supported the possibility for family members to be involved in the Forum. Others suggested this should be on a case by case basis and that survivors should retain the choice.

138 Other national human rights institutions developing similar frameworks have also recommended extension of remedies to family members and even communities and descendents (see Australian HREOC, recommendation 4).

139 Research report, p 29-30.

140 Van Boven Principles, X, para. 24.

141 See Legal paper, p 35-36; research report, p 36, 37, 39.

142 Some survivors who participated in the research project felt this would be valuable (research report, p 37).

143 Ibid.

144 E.g. Truth and Reconciliation Canada uses a “memory book” to support survivors to make statements. The book provides accessible information on context, the role of the TRC, consent forms and prompt questions.

145 Survivors raised this during research, (research report, p 33, 44).

146 Moyra Hawthorn, “Historic abuse in residential care: sharing good practice”, SIRCC, In Residence, No 4, December 2006.

147 Experience from Ireland, shared during the preparation of this framework suggests that, far from therapeutic, the experience of recalling historic abuse, even in a confidential forum, may have a deleterious impact on survivors’ mental health which in some cases may endure over many months or more. The right to the highest attainable standard of physical and mental health is guaranteed in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). To comply with that right, the state must take immediate steps to respect, protect and fulfil (achieve progressively the full realisation of) the right to health. See UN Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health : . 11/08/2000. UN Doc. E/C.12/2000/4.

148 Articles 2, 3 and 8 of the ECHR and ICCPR art 7, UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Article 16.

149 UN Set of principles to combat impunity, UN Doc. E/CN.4/2005/102/Add.1, Principle 32.

150 Principles 4, 5 and 6.

151 Peter Newell and Rachel Hodgkin, Implementation Handbook for the Convention on the Rights of the Child, fully revised third edition, 2007, UNICEF, New York, see legal paper, page 6.

152 Research report, page 7, 29.

153 See legal paper, pages 18-32, 37-39.

154 The exception would be for torture as it has developed as an international crime.

155 E and others v UK, Z and others v UK

156 Also included in Article 17, ICCPR and in Articles 22 and 23, CRPD.

157 UN Human Rights Committee, General Comment no. 16, The right to respect of privacy, family, home and correspondence, and protection of honour and reputation, 8 April 1988, para. 1.

158 See the Legal Paper, pages 32-37.

159 See legal paper, p 37.

160 As was the case in South Africa when survivors named perpetrators publicly as part of the TRC hearings.

161 As pointed out by the Kauffman Review of the Canadian enquiry into child abuse in Nova Scotia in the mid 90’s.

162 UN Doc. E/CN.4/2005/102/Add.1, Principle 9.

163 See Legal paper, p 37.

164 See Legal paper, pages 30-31.

165 UN Human Rights Committee, General Comment No. 9, Humane Treatment of Persons Deprived of their Liberty (Article 10), 30/7/82 (1982), para. 1.

166 UN Human Rights Committee, General Comment No. 21, Replaces General Comment No. 9 concerning Humane Treatment of Persons Deprived of their Liberty (Article 10), 10/4/92 (1992), para. 3.

167 See legal paper, pages 94-98.

168 Raised by institutions and staff during research, see research report.

169 See legal paper, pages 94-96.

170 See SIRRC/CLA p 17-18 for comments on Kaufman Report into redress mechanism for institutional child abuse in Nova Scotia.

171 Survivors who participated in research to inform this framework felt that “both individuals and institutions should be invited to give their understanding of a situation.” Research report, p 34.

172 See legal paper p 13, 39-40, 48-49, 96.

173 See legal paper, pages 39-41; there is no statute of limitation for criminal acts in Scotland, only a common law limitation which is extremely rarely relied on in practice. The Prescription and Limitation law is however relevant to civil law liability.