Remedies in international human rights law

AuthorChrista Tobler
ProfessionEuropean Network of Legal Experts in the non-discrimination field
Pages20-24

Page 20

1. General starting points

The report will now briefly examine the requirements in relation to remedies under international human rights law. International law is interesting not only for the purposes of comparison but also because it forms the broader background of much of EC discrimination law. As Signatory States to numerous international human rights instruments, the EU Member States will have to make sure that both their national and their regional law (EU and EC law) is in line with their obligations under such Treaties. Under general principles of international law, States are bound by the substantive principle of pacta sunt servanda ('treaties must be observed') but they are, in principle, free to choose the means of implementation and enforcement (see the Court of Justice in Portugal v Council,62para. 35). Increasingly, instruments of international law contain explicit provisions on remedies, albeit on different levels (Shelton 1999:15 subs.). Some international human rights instruments explicitly state the right to effective, proportionate and dissuasive remedies and some even specify the type of remedies to be granted (e.g. Art. 13 of the Council of Europe's Cybercrime Treaty, which specifies that effective, proportionate and dissuasive remedies must include the deprivation of liberty).63 However, at present, provisions such as Art. 8 of the Universal Declaration of Human Rights and Art. 13 ECHR are much more commonly used. Both simply state the right to 'an effective remedy'. In the absence of more explicit provisions, there is no clear set of specific and directly applicable requirements under international law with regard to enforcement or remedial structures (McCrudden 2001:279). In the following section, some examples are given from jurisprudence regarding remedies under two instruments of international human rights law, namely the European Convention on Human Rights (ECHR) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

2. Two examples
2.1. The right to an effective remedy under Art 13 ECHR

As has already been mentioned, Art. 13 ECHR provides for the right to an effective remedy for persons whose rights and freedoms as set forth in the Convention are violated.The provision establishes a minimum requirement linked to the protection of other and more specific provisions, such as under Art. 5(4) and (5) ECHR and Art. 6 ECHR (right to a fair trial etc.). In addition, substantive provisions such as Art. 2 ECHR (right to life) and Art. 3 ECHR (prohibition of torture) also have remedial aspects, although the requirements of Art. 13 ECHR are broader than, for example, the procedural obligation under Art. 2 ECHR to conduct an effective investigation (Shelton 1999:30). Art. 13 ECHR has been strengthened in its relationship with other provisions of the Convention through the case law of the Court of Human Rights. The Court held that, in the event that national remedies are inadequate or ineffective, applicants are absolved from their obligation to exhaust domestic remedies before they can turn to the Court in order to complain about infringements of provisions such as Arts. 6 and 13 ECHR (e.g. Aksoy v. Turkey, para.6457; discussed by Lawson & Schermers 2000:654).65 In Kud a66 (para. 146 subs.), the Court clarified the distinction Page 21 between the issues arising under Arts. 13 and 6 ECHR. The Court held that in certain circumstances Art. 6(1) must be deemed to constitute a lex specialis in relation to Art. 13 ECHR, so that it is unnecessary to consider the latter in addition to the former. In contrast, there is no such overlap in a situation where the alleged Convention violation is a violation of the right to trial within a reasonable time, contrary to Article 6(1) ECHR. In such a case, the question of whether the applicant did benefit from trial within a reasonable time in the determination of civil rights and obligations or a criminal charge is a separate legal issue from that of whether an effective remedy was available to the applicant under domestic law to ventilate a complaint on that ground. In its former case law, the Court had nevertheless declined to examine Art. 13 ECHR as well. In Kud a, however, the Court changed its approach and decided to examine Arts. 6(1) and 13 ECHR separately.67

As for the substance of Art. 13 ECHR, the Court in Silver and others v. UK 68 (para. 113) listed the principles governing the applicability of Art. 13 ECHR (see Gomien, Harris & Zwaak 1998:336 subs., Mowbray 2001:591 subs.), namely: 1) the claim of a violation must be arguable, 2) though the authority in charge need not necessarily be of a judicial nature,69 its powers and guarantees are relevant in determining whether the remedy is effective, 3) further, an aggregate of remedies may satisfy Art. 13 even if no single remedy does so.The Convention does not lay down any given manner for ensuring effective implementation. In Aksoy v. Turkey(para. 95), the Court of Human Rights held that the scope of the obligation under Art. 13 ECHR varies depending on the nature of the applicant's complaint under the Convention but that the remedy 'be "effective" in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State'. The Court also stated that Art. 13 ECHR requires 'the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief' (emphasis added; see also Smith and Grady v. UK,70 para. 135). Within this framework, States Parties to the Convention enjoy a broad margin of appreciation when implementing Art. 13 ECHR.

The Court's case law on Art. 13 ECHR appears to deal mostly with the procedural aspects of the right to an effective remedy (that is, access to a judicial or administrative authority to deal with claims of a violation of the Convention), although in certain cases the Court explicitly mentions compensation as one possible form of relief (e.g. Aydin v. Turkey,71 para. 103). According to Kilpatrick (2000:23 subs.), it is very difficult to construct any general criteria about what might constitute an effective remedy and the threshold is very low. Kilpatrick concludes that the promise of Art. 13 ECHR has not been fulfilled (see also White 2000). Similarly, Shelton (1999:32) appears to suggest that a wider interpretation of the Court's remedial powers under Art. 13 ECHR would be possible. In particular, the Court could direct the State in breach of the Convention to remedy the breach in the first instance when such a case reaches it, rather than allowing for successive cases concerning the same State and the same problem to come to it. Page 22

2.2. The right to effective protection and remedies under Art 6 CERD

The second example of a provision on effective remedies in international human rights law to be mentioned briefly in the present context is Art. 6 CERD. It is more explicit than Art. 13 ECHR in that it provides for effective protection and remedies for victims of racial discrimination, including just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination (see McCrudden 2001:267 subs.).The meaning of the concepts of reparation and satisfaction has been explained by the Committee on the Elimination of Racial Discrimination in particular in General Recommendation 26,72 where the Committee mentioned both pecuniary and moral damage. McCrudden mentions several concrete cases examined by the Committee in the context of Art. 6 CERD. A case concerning the Netherlands73 is of particular interest because here the Committee recommended a specific type of remedy. The case concerned alleged racial discrimination against a Moroccan citizen looking for a house in the Netherlands. The Committee found that the investigation by the police and prosecution authorities had not met the requirements of due diligence and expediency but had been inadequate and incomplete. The Committee recommended that the Netherlands should review its policy and procedures regarding the investigation of instances of alleged racial discrimination and that it should 'provide the complainant with relief commensurate with the moral damage he had suffered' (points 6.3. subs. of the Committee's opinion; emphasis added; see also McCrudden 2001:273).

3. The UN Basic Principles and Guidelines on the Right to a Remedy and Reparations

More specific information on the possible meaning of the right to an effective remedy under international human rights law can be found in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparations. In 2000, the UN Commission on Human Rights adopted a Resolution on the right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms, in which it called upon the international community to give due attention to the right to restitution, compensation and rehabilitation for victims of grave violations of human rights. It also requested the Secretary-General to circulate to all Member States the draft text of the Basic Principles and Guidelines.74In 2003, the Commission on Human Rights requested a revised version of the Basic Principles, taking into account the opinions and commentaries of States and of intergovernmental and nongovernmental organisations as well as the results of the consultative meeting.75 In a Resolution adopted in 2004, the Commission on Human Rights called for a further consultative meeting on the text, with a view to finalising the Basic Principles and Guidelines.76 As far as the present writer can see, the finalization of the text is still going on.

In the revised text of the Basic Principles and Guidelines,77 it is stated that the obligation to respect, ensure respect for and enforce international human rights and humanitarian law includes, inter alia: a State's duty to investigate violations effectively and, where appropriate, to take action against the violator, in accordance with domestic and Page 23 international law; to provide victims with equal and effective access to justice; to afford appropriate remedies to victims, and to provide for or facilitate reparation to victims (point 3). Reparation must be adequate, effective and prompt as well as proportionate to the gravity of the violations and the harm suffered (point 15).Taking account of individual circumstances, reparation should take the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (point 21). The text of the Basic Principles and Guidelines is quite specific regarding the form and extent of these remedies. It states:

'22. Restitution should, whenever possible, restore the victim to the original situation before the violations of international human rights or humanitarian law occurred. Restitution includes: restoration of liberty, legal rights, social status, family life and citizenship; return to one's place of residence; and restoration of employment and return of property.

  1. Compensation should be provided for any economically assessable damage resulting from violations of international human rights and humanitarian law, such as:

    (a) Physical or mental harm, including pain, suffering and emotional distress;

    (b) Lost opportunities, including education;

    (c) Material damages and loss of earnings, including loss of earning potential;

    (d) Harm to reputation or dignity; and

    (e) Costs required for legal or expert assistance, medicines and medical services, and psychological and social services.

  2. Rehabilitation should include medical and psychological care as well as legal and social services.

  3. Satisfaction should include, where applicable, any or all of the following:

    (a) Cessation of continuing violations;

    (b) Verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further unnecessary harm or threaten the safety of the victim, witnesses, or others;

    (c) The search for the bodies of those killed or for the disappeared, and assistance in the identification and reburial of the bodies in accordance with the cultural practices of the families and communities;

    (d) An official declaration or a judicial decision restoring the dignity, reputation and legal and social rights of the victim and of persons closely connected with the victim;

    (e) Apology, including public acknowledgement of the facts and acceptance of responsibility; (f) Judicial or administrative sanctions against persons responsible for the violations;

    (g) Commemorations and tributes to the victims;

    (h) Inclusion of an accurate account of the violations that occurred in international human rights and humanitarian law training and in educational material at all levels.

  4. Guarantees of non-repetition and prevention should include, where applicable, any or all of the following:

    (a) Ensuring effective civilian control of military and security forces;

    (b) Restricting the jurisdiction of military tribunals only to specifically military offences committed by members of the armed forces;

    (c) Strengthening the independence of the judiciary;

    (d) Protecting persons in the legal, medical and health-care professions, the media, and other related professions, and human rights defenders;

    (e) Conducting and strengthening, on a priority and continued basis, human rights training to all sectors of society, including law enforcement officials, as well as military and security forces in international humanitarian law;

    (f) Promoting the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, media, medical, psychological, social service and military personnel, as well as the staff of economic enterprises;

    (g) Creating mechanisms for monitoring inter-social conflict resolution and preventive social intervention.' Page 24 McCrudden (2001:297) has observed that a noticeably more cautious approach has been adopted of late in Europe (meaning in the framework of the Council of Europe and the EU/EC) than internationally, and that a growing gap between international normative rhetoric and European remedial structures can be identified. For present purposes, it is important to note that the idea behind the Basic principles is not to create new substantive legal mechanisms but to systematise obligations already existing under different sources of international human rights law. Given that EC human rights law must be seen against the background of International Human Rights Law, it must be concluded that the principles expressed in the Basic Principles and Guidelines must be taken seriously by the EU Member States as the benchmark in relation to remedies when implementing and applying EC human rights law.

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    [62] Case C-149/96 Portugal v Council[1999] ECR, I-8395.

    [63] Convention on cybercrime; see http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm. Although this Treaty is not strictly a human rights law instrument, it does have human rights aspects (e.g. racism, pornography).

    [64] Aksoy v.Turkey, adm.no. 21987/93, judgment of 18 December 1996.

    [65] In this case, the Court found that it could not examine Art. 6 ECHR because the applicant, due to the special circumstances of the case, had not even attempted to make an application before the civil courts.The Court therefore considered the complaint in relation to the more general obligation on States under Art. 13 ECHR to provide an effective remedy in respect of violations of the Convention (see para. 88 subs.).

    [66] Kud a v. Poland, adm.no. 30210/96, judgment of 26 October 2000.

    [67] The reason indicated by the Court was the continuing accumulation of applications in which the only, or principal, allegation was that of a failure to ensure a hearing within a reasonable time in breach of Article 6(1) ECHR as well as the growing frequency of violations. In that context, the Court spoke of an important danger for the rule of law within national legal orders when excessive delays in the administration of justice occur in respect of which litigants have no domestic remedy.

    [68] Silver and others v. UK, adm.no. 5947/72, judgment of 25 March 1983.

    [69] It should be noted that this applies only within the framework of Art. 13 ECHR. In contrast, Art. 6 ECHR explicitly states a right to a court.

    [70] Smith and Grady v.UK, adm.no. 33985/96 and 33986/96, judgment of 27 September 1999.

    [71] Aydin v.Turkey, adm.no. 23178/94, judgment of 25 September 1997.

    [72] See e.g. http://www1.umn.edu/humanrts/gencomm/genrexxvi.htm.

    [73] Netherlands: Communication No 4/1991 (16/3/93) [CERD/C/42/D/4/1991].

    [74] Commission on Human Rights Resolution 2000/41 on the right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.RES.2000.41.En?Opendocument. On the earlier development of this document, see Shelton 1999:18 subs.The text of the Basic Principles can be found at http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.2000.62.En?Opendocument, in the annex.

    [75] Commission on Human Rights Resolution 2003/34 on the right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.RES.2003.34.En?Opendocument.

    [76] Commission on Human Rights Resolution 2004/34 on the right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental freedoms, www.ohchr.org/english/events/meetings/docs/RES_2004_34.doc.

    [77] For the text, see the link indicated at http://www.unhchr.ch/html/menu2/restitution.htm.

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