In a broad sense, due process is interpreted here as the right to be treated fairly, efficiently and effectively by the administration of justice. The rights to due process place limitations on laws and legal proceedings, in order to guarantee fundamental fairness and justice. Due process is interpreted here as the rules administered through courts of justice in accordance with established and sanctioned legal principles and procedures, and with safeguards for the protection of individual rights. The rules applicable to the administration of justice are extensive and refer to, inter alia, fair trial, presumption of innocence and independence and impartiality of the tribunal. In most Conventions, the various rules are included in several articles. As this handbook focuses on a variety of Conventions, four elements of due process are discussed: a) quality in terms of administration of justice; b) quality in terms of protection of the rights of the parties involved; c) efficiency; and d) effectiveness. As due process rights are traditionally known among human right experts to centre on the right to a fair trial and the right to an effective remedy, the first three elements are discussed under the heading of fair trial, while effectiveness is discussed under the right to an effective remedy.
A. The right to a fair trial
The right to a fair trial does not focus on a single issue, but rather consists of a complex set of rules and practices. The right to a fair trial is interpreted here as the rules administered through courts of justice in accordance with established and sanctioned legal principles and procedures, and with safeguards for the protection of individual rights. The rules applicable to the administration of justice are wide and refer to, inter alia, a fair and public hearing, the presumption of innocence and the independence and impartiality of the tribunal.
The importance of these rights in the protection of human rights is underscored by the fact that the implementation of all human rights depends upon the proper administration of justice. Whenever a person’s rights are interfered with, she/he can only defend herself/himself adequately if she/he enjoys an effective recourse to due process.
1. QUALITY OF THE ADMINISTRATION OF JUSTICE
The right to a fair trial is guaranteed if individuals can have recourse to ‘a competent, independent and impartial tribunal’, as recognised by international Conventions, such as the ICCPR and the American Convention. These components are discussed below.
The most important component is the independence of the judiciary, referring to, inter alia, independence from the executive and the legislature. If such independence does not exist, the recourse to a court is of little use. The UN Basic Principles on the Independence of the Judiciary set out certain requirements that have to be met for a court to be considered ‘independent’: a) conditions of service and tenure; b) manner of appointment and discharge; and c) degree of stability and logistical protection against outside pressure and harassment. The problems linked with the independence of judges are diverse, both in quality and quantity, in different parts of the world, ranging from salary bargaining schemes to physical disappearances. The major Conventions expressly require that tribunals be ‘established by law’. The existence of a tribunal should not depend on the discretion of the executive branch but be based on an enactment by the legislature. Special courts are only tolerated under exceptional circumstances.
The judge must not have any personal interest in the case. The appearance of impartiality is of great importance; there must be impartiality in the objective sense (which examines whether the judge offered procedural guarantees sufficient to exclude any legitimate doubt of partiality), as well as the subjective sense (there should not be any appearance of impartiality).
The idea of competence has not been elaborated upon explicitly in international Conventions or case-law. Indirectly, however, some important elements have been included in the case-law of international supervisory bodies. Supervisory bodies have pointed out, for example, that the statute law must fulfil basic conditions such as foreseeability and accessibility. Moreover, it has been recognised that case-law must be consistently applied in order for court decisions not to be unforeseeable or resulting in the arbitrary deprivation of effective protection of applicants’ rights.
2. QUALITY WITH REGARD TO PROTECTION OF THE RIGHTS OF THE PARTIES TO THE TRIAL
The quality of a court cannot be assured if the rights of the applicants are not assured. A number of individual rights and principles related to the right to a fair trial have been developed, including: the right to a fair hearing; the right to a public hearing and pronouncement of judgement; equality of arms; presumption of innocence; freedom from compulsory self-incrimination; the right to know the accusation; adequate time and facilities to prepare a defence; the right to legal assistance; the right to examine witnesses; the right to an interpreter; the right to appeal in criminal matters; the rights of juvenile offenders; no punishment without law; ne bis in idem; and the right to compensation for miscarriage of justice. A few of these rights are elucidated below.
There must be an equal and reasonable opportunity for all parties to present a case. The right to a fair hearing depends on many issues, such as the presentation of evidence or the behaviour of the members of the court, public and press. Such fair hearing is often dependent on several other rights. The availability of competent legal assistance may, for instance, also be crucial in carrying out successful litigation in court.
Equality of arms
Equality of arms, which must be observed throughout the trial process, means that both parties are treated in a manner ensuring that they have a procedurally equal position during the course of the trial, and are in an equal position to make their case. It means that each party must be afforded a reasonable opportunity to present its case, under conditions that do not place it at a substantial disadvantage vis-à-vis the opposing party. In criminal trials, where the prosecution has all the machinery of the state behind it, the principle of equality of arms is an essential guarantee of the right to defend oneself. This principle would be violated, for example, if the accused was not given access to the information necessary for the preparation of the defence, if the accused was denied access to expert witnesses, or if the accused was excluded from an appeal hearing where the prosecutor was present.
The difference in position between an accused and a ‘civil’ litigant must be emphasised. The former is more vulnerable to abuse by the state machinery, especially if he/ she is deprived of his/her liberty.
A public hearing implies that oral hearings on the merits of the case are held in public, whereby members of the public, including press, can attend. Courts must make information about the time and venue of the oral hearings available to the public and provide adequate facilities (within reasonable limits) for the attendance of interested members of the public. Judgements are to be made public, with a few exceptions.
The public’s access to hearings may be restricted in certain narrowly defined circumstances. The ICCPR and the European Convention set out the limited number of grounds on which the press and the public may be excluded from all or parts of hearings. They include a) public morals; b) public order; b) juveniles; d) protectionof the private life of the parties; and e) where publicity is found to prejudice the interests of justice. Under Article 8(5) American Convention, the right to a public trial in criminal proceedings may be suspended only ‘in so far as necessary to protect the interests of justice’.
Presumption of innocence
The right to the presumption of innocence requires that judges and juries refrain from prejudging any case. It also applies to all other public officials. This means that public authorities, particularly prosecutors and police, should not make statements about the guilt or innocence of an accused before the outcome of the trial (see Human Rights Committee, General Comment 13, para.7). It also means that the authorities have a duty to prevent the news media or other powerful social groups from influencing the outcome of a case by pronouncing on its merits. In accordance with the presumption of innocence, the rules of evidence and conduct of a trial must ensure that the prosecution bears the burden of proof throughout a trial.
3. EFFICIENCY OF THE ADMINISTRATION OF JUSTICE
The European Convention and the American Convention expressly require that hearings take place ‘within reasonable time’. The ICCPR speaks of expeditious hearings, thereby also implying that justice be delivered expeditiously and within a reasonable time. A delay of justice is often equal to no justice at all; as the old saying goes: ‘Justice delayed is justice denied.’ It is especially important for a person charged with a criminal offence not to remain longer than necessary in a state of uncertainty about his/ her fate. No other subject of human rights is so often the subject of case-law before the European Court as ‘the reasonable time requirement’. The European Court and the other major supervisory mechanisms have assessed what is reasonable time on a case-by-case basis. Elements to be considered include a) national legislation; b) what is at stake for the parties concerned; c) the complexity of the case; d) the conduct of the accused or the parties to the dispute; and e) the conduct of the authorities. Trials lasting as long as 10 years have been deemed reasonable, while others lasting less than one year have been found to be unreasonably delayed. Nevertheless, the wealth of case-law has resulted in an excellent set of tools to assess the efficiency of courts and signal the importance of an adequate administration of justice, including legislation allowing for efficiently functioning courts.
The above has shown clearly that for a good system of due process a large number of important rules have to be complied with. Such compliance has to be done in a consistent way. In turn, such consistency has lead to detailed analysis of the wording of the various standards. In the course of the past decades the various supervisory mechanisms have provided for an adequate interpretation of various concepts such as: what are civil rights and obligations; what is suit at law; what is criminal; and what is a court. Such interpretation is important as can be explained by the following example. As mentioned above, accused persons deserve, for understandable reasons, more protection than other parties participating in court cases. That can, however, induce a national legal order to erode such protection by introducing non-criminal legal norms and procedures. A government could then bring an action against someone for punitive damages instead of prosecuting the person concerned. Supervisory mechanisms have corrected such an approach by defining the concept of ‘criminal charge’ and giving it an autonomous meaning.
The UDHR states in Article 10 that ‘everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him’. The right to be presumed innocent is dealt with in Article 11 UDHR.
The right to a fair trial (including the right to be presumed innocent) has been translated into obligations in:
ICCPR: Article 14 (fair trial) and Article 15 (no retroactive penal laws).
ECHR: Article 6 (fair trial), Article 7 (no punishment without law) and Protocol No. 7 (rights of accused persons). Another regional standard in Europe is the European Social Charter (fair trial rights under Articles 47 to 50).
ACHR: Article 8 (fair trial) and Article 9 (freedom from ex-post facto laws). According to Article 27 ACHR, judicial guarantees have been given non-derogable status, which means that certain aspects of the right to a fair trial are non-derogable.
ACHPR: Article 7 (fair trial). Article 26 imposes a duty on states parties to guarantee the independence of the courts and allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the African Charter.
One may further note various articles in the Rome Statute on the International Criminal Court (ICC), which define in detail principles of criminal justice (Articles 22-33) and principles of fair trial (Articles 62-67). The Rome Statute, which was adopted in 1998, provides the highest standard of rules on due process and reflects the caselaw and doctrine developed since the adoption in the 1950s and 1960s of the major Conventions.
In addition to the main human rights Conventions, there are declarations, resolutions and other non-treaty texts that address the independence of the judiciary and fair trial. These include, for example, the Basic Principles on the Independence of the Judiciary (UNGA Resolution 40/146), the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which contains broad guarantees for those who suffer pecuniary losses, physical or mental harm (UNGA Resolution 40/34), Basic Principles on the Role of Lawyers and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (UNGA Resolution 60/147).
In 1990, the Human Rights Commission appointed two rapporteurs to prepare a report on existing international norms and standards pertaining to the right to a fair trial. The rapporteurs’ work included the examination of national practices related to the right to a fair trial. In 1994, the rapporteurs submitted a draft third optional protocol to the ICCPR, aiming at including the right to fair trial in the non-derogable rights provided for in Article 4(2) ICCPR. The right to fair trial is currently a derogable right and may be suspended in certain circumstances, such as times of public emergency under Article 15 ECHR (see I§4.C).
The international supervisory mechanisms, notably the European Court and the Human Rights Committee, have dealt with a substantial amount of cases where the right to a fair trial has come into play.
At the UN treaty level, the Human Rights Committee has decided more cases regarding Article 14 than any other ICCPR right. Many of the cases concern complaints from persons on death row about the fairness of their trials (see, e.g., Levy v. Jamaica, Johnson (Errol) v. Jamaica and Thomas (Damien) v. Jamaica). By virtue of the fact that a human life is at stake in a capital case, the Human Rights Committee demands the application of the highest standards of fairness to the accused. In Chan v. Guyana, for example, it was found that an adjournment of trial for two days constituted an inadequate amount of time for a defendant facing a possible death sentence to prepare a defence and in Larrañaga v. The Philippines the Committee established that the imposition of the death sentence on the author after the conclusion of proceedings which did not meet the requirements of Article 14 amounted to inhuman treatment in violation of Article 7. The Human Rights Committee has clarified several elements of the rights to a fair trial under the ICCPR. On the right to defend criminal proceedings ‘in person or through legal assistance’ under Article 14, paragraph 3(d), the Committee has stressed the fundamental right of a defendant to represent himself/ herself in person, without a court-appointed lawyer (Correia de Matos v. Portugal). In relation to judicial impartiality, the Committee has come down against a judge presiding over both the trial and subsequent appeals in the same case (Larrañaga v. The Philippines). It has been established that there is no general right to an oral hearing in higher courts of appeal. If, however, the prosecution is afforded an oral hearing without the same opportunity being given to the defendant, a state party must justify the inequality of arms on ‘objective and reasonable grounds’ without any ‘actual disadvantage or other unfairness’ taking place (Dudko v. Australia). The right to appeal against a criminal conviction is absolute – even if the verdict was initially determined in the highest national court (Terrón v. Spain). The fair trial jurisprudence of the Committee is also applicable to unreasonably long child custody proceedings (N. T. v. Canada). The age of the child at the centre of proceedings, the possible impact on the well-being of the child and the outcome of the case must all be weighed to determine the reasonableness of the delay. Moreover, the Human Rights Committee has issued three General Comments that are important with regard to the right to a fair trial, General Comments 13, 29 and 32. In General Comment 29, the Committee stated that, inter alia, some elements of the right to a fair trial that are considered fundamental principles, such as the presumption of innocence, should not be deviated from in emergency situations (General Comment 29, paras. 11 and 16) and that ‘it is inherent in the protection of rights explicitly recognized as non-derogable’ in the Convention, that they ‘must be secured by procedural guarantees, including, often, judicial guarantees’. Therefore, provisions relating to procedural safeguards ‘must never be subject to measures that would circumvent the protection of derogable rights’. General Comment 32 reiterates the principles of both the established and more recent case-law under Article 14. Importantly, it has settled the contentious issue of military tribunals by declaring that they should only be used in ‘exceptional’ circumstances. To this end a state party must ‘show that a special tribunal is necessary and justified by objective and serious reasons’ and why, due to the gravity of the offence and class of offender, the regular civilian courts are unable to secure a trial. General Comment 32 also calls upon states parties to create separate juvenile justice systems to safeguard the rights of minors. Further, in the interests of rehabilitation, juveniles, where possible, should be diverted into non-penal mechanisms (e.g., mediation sessions) to avoid potentially damaging criminal sanctions.
The Committee for the Elimination of Racial Discrimination has addressed racial discrimination in the administration and functioning of the criminal justice system in General Recommendation 31. The Committee provides concrete recommendations for the elimination of racism in the administration of justice including suggestions for gauging the existence and extent of racism; strategies for preventing racial discrimination, such as education and proper representation of people of colour in the police and the justice system; and proposals for making the law more accessible to all. The recommendation sets out specific procedural instructions regarding arrest, detention, questioning and trial.
Like the Human Rights Committee, the European Court has adjudicated more cases concerning the right to a fair trial than any other right. More than half of the judgements in which the Court has found a violation between 1998 and 2008 have included a violation of Article 6, whether on account of the unfairness or the length of proceedings. Elements developed through the case-law of the European Court include, for instance, a) access to court (a civil claim must be capable of being submitted to a judge, prohibition of denial of justice); b) fair hearing (equality of arms, right to be present at the trial); and c) the concept of ‘criminal’. Moreover, a significant number of judgements contain aspects relating to reasonable time. Findings of the Court regarding fair trial issues include a ruling that trial of civilians by military courts in northern Cyprus was a violation (Cyprus v. Turkey). It has held that the use of violence, brutality or torture (anything with the minimum severity to breach Article 3) aimed at extracting evidence from an accused or witnesses violates the right to a fair trial (Harutyunyan v. Armenia) even if the evidence was not a decisive factor in securing a conviction. Jalloh v. Germany dealt with a case where the applicant was forced by means of emetics to regurgitate a packet of drugs he had been selling prior to arrest. The Court found that the measures taken to administer the emetics amounted to a breach of Article 3 and also infringed the applicant’s freedom from self-incrimination. For these reasons the subsequent trial was considered unfair. A qualification on this principle was articulated in Gäfgen v. Germany. The Court found that the use of evidence obtained under duress, just like the use of a confession obtained under duress, led to a strong presumption that the applicant’s trial could, as a whole, have been unfair. However, in this case the Court ruled that the evidence obtained as a result of the extracted confession had only been accessory in securing the applicant’s conviction. The applicant’s defence rights had not therefore been compromised as a result of their admission and their use had not made the applicant’s trial as a whole unfair.
In Heaney and McGuinness v. Ireland and Quinn v. Ireland the Court ruled that convicting the applicants for refusing to answer questions asked by the police violated their right to silence and the privilege against self-incrimination as well as the presumption of innocence. The privilege and the right to remain silent are, however, by themselves not absolute rights. Obliging the owner of a car to identify the driver of the vehicle (himself) caught on camera speeding in the context of a prosecution was not considered to destroy the essence of the applicants’ right to remain silent and privilege against self-discrimination having regard to the circumstances of the case - the limited information sought, the availability of safeguards and the special nature of the regulatory scheme in question (O’Halloran and Francis v. The United Kingdom).
Illustrations of issues regarding impartiality of judges include a violation when a group of trial judges felt personally insulted by the conduct of a defence lawyer and as a consequence held him in contempt of court (Kyprianou v. Cyprus), a case where the judge was found impartial on account of her husband’s indebtedness to one of the parties (Pétur Thór Sigurðsson v. Iceland), and a case where the judge had acted as legal expert of the applicant’s opponent in earlier proceedings (?varc and Kavnik v. Slovenia). Clarifying the principle of the presumption of innocence, the Court found a violation in a case where a judge had made statements to the press amounting to the adoption of a definite position as to the outcome of a trial, with a distinct preference for a guilty verdict against the applicant (Lavents v. Latvia) and in Matija?ević v. Serbia the Court found a violation where the domestic court had pronounced the applicant guilty before his guilt was proven according to law.
The issue on whether and to what extent disputes relating to the recruitment, career and termination of service of civil servants fall within Article 6 has been much debated. Some positions are so closely linked to the sovereign interests of a state that access to judicial and administrative review may be legitimately restricted. In Vilho Eskelinen v. Finlandthe Grand Chamber clarified this area of the law and adopted a new approach. The Court introduced a new two-stage test for the respondent state to be able to rely on the applicant’s status as a civil servant to exclude the application of fair trial guarantees. ‘Firstly, the State in its national law must have expressly excluded access to a court for the post or category of staff in question. Secondly, the exclusion must be justified on objective grounds in the State’s interest.’
The Court can only adjudicate on the fairness of hearings, not the substance of a dispute itself. This was the decisive factor in a case concerning a compensation action in the Italian courts for property damage sustained as a result of NATO bombing operations in the Former Republic of Yugoslavia (Markovic and Others v. Italy). The Italian court refused to rule on the matter because it was purely political – the decision of the Italian government to participate in the NATO operation was effectively taken outside the ambit of national judicial review. The applicants argued that the court’s removal of its own jurisdiction to hear the case constituted a violation of their right to a fair hearing. The Court decided that the Italian ruling was a meditation on the state of the law in Italy – constituting a fair hearing in itself – and was delivered in accordance with Article 6. InVan Geyseghem v. Belgium the Court ruled that the fact that a defendant, in spite of having been properly summoned, does not appear in Court, cannot - even in the absence of an excuse - justify depriving him of his right to be defended by counsel and in Steel and Morris v. The United Kingdom the Court ruled that the state’s failure to facilitate a legal aid scheme for defamation proceedings constituted a violation of its obligation to secure equality of arms.
Finally, procedures for expulsion of aliens and extradition do not belong to the criminal sphere of fair trial, notwithstanding the fact that they may be brought in the context of criminal proceedings. Maaouia v. France concerned an exclusion order imposed on the applicant by a criminal court in addition to an imprisonment conviction. The Court concluded that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6. The same exclusive approach applies to extradition proceedings (Peñafiel Salgado v. Spain).
At the African level, the African Commission has adopted four resolutions with regard to fair trial guarantees. These resolutions elaborate upon Article 7(1) ACHPR, set out key principles and guidelines and guarantee several additional rights, as well as elaborating upon the role of lawyers and judges in the implementation of the Charter and the strengthening of the independence of the judiciary. Moreover, two special rapporteurs have been appointed with mandates that touch upon the right to a fair trial: the Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions and the Special Rapporteur on Prisons and Conditions of Detention. In its communications, the African Commission has mainly dealt with issues concerning the presumption of innocence and the impartiality of the court. The Commission has ruled that clemency orders leading to impunity for human rights violations prevent victims of crimes and alleged human rights violations from seeking an effective remedy and compensation in violation of the right to judicial protection and to have their cause heard (Zimbabwe Human Rights NGO Forum v. Zimbabwe). The Commission has found that failure of the state to comply with a domestic court ruling on compensation violated Article 7, implying that the right to execution of a judgement falls under the right to have one’s case heard (Antoine Bissangou v. Republic of Congo) and it has found that detaining individuals incommunicado for over three years constituted a prima facie violation of due process of law and Article 7, including reasonable time and the right to defence. Finally, in a case concerning arbitrary arrest and deportations the Commission has found that denying a deportee the opportunity to seize the courts to challenge his or her detention or deportation constitutes a violation of the deportee’s rights under Article 7 (RADDHO v. Zambia, Institute for Human Rights and Development in Africa v. Republic of Angola andUIDH, FIDH, RADDHO, ONDH v. Angola).
The Inter-American Commission has dealt with a number of issues under the right to a fair trial. When it has dealt with Article 8 ACHR, however, it has made it clear that it is not concerned with the correctness of a national court’s decision, but whether that decision has been reached in accordance with the principles of due process of law. The elements of fair trial that the Commission has mainly dealt with are: a) access to a court in the context of amnesty or impunity laws; b) right to hearing within a reasonable time; and c) competent, independent and impartial tribunals. In analysing the meaning of ‘independent’ and ‘impartial’, the Commission has emphasised the importance of the constitutional doctrine of the separation of powers (e.g., the 1983 report on the situation of human rights in Cuba). The Inter-American Court has applied Article 9, on ex-post facto laws, to find violations of the Convention in cases where the applicant has been convicted of two mutually exclusive and incompatible terrorism offences at the same time (García-Asto and Ramírez-Rojas v. Peru). The question of a fair trial was also at issue in the case of Fermín Ramírez v. Guatemala. Here a murder charge was substituted for a lesser offence of aggravated rape during a criminal trial. The new offence brought the death penalty into play, but the substitution was based solely on a judicial assessment of the applicant’s ‘dangerousness’.
The Appeals Chamber of the International Criminal Court has delivered its first major fair trial decision, finding that the Prosecutor is under a clear obligation to disclose not only damaging and exculpatory evidence to the Defence, but also more general material that nonetheless aids the preparation of a case (The Prosecutor v. Thomas Lubanga Dyilo). The Prosecution had argued that it could only disclose Evidence after being informed by the accused of a basic ‘line of defence’. This argument was rejected for being incompatible with the right to remain silent.
NGOs like Amnesty International and Human Rights Watch play an important role in developing and safeguarding the right to a fair trial. This is done both through research and documentation, such as the documentation of violations, which are brought to the attention of the various mechanisms. The International Commission of Jurists has identified itself above all with the independence of the judiciary.
B. The right to an effective remedy
1. THE EFFECTIVENESS OF THE ADMINSTRATION OF JUSTICE
The need for effective administration of justice may appear obvious; yet the absence of an effective administration of justice continues to plague numerous legal systems in the world. The lack of effective administration of justice is a continuous source of complaints before the international supervisory mechanisms. There are at least one hundred human rights treaties adopted internationally and regionally. Nearly all states are parties to some of them and several human rights norms are considered part of customary international law. However, like all law, human rights law is violated. The increasing case-load before supervisory mechanisms is a clear indicator that individuals and victims are increasingly capable of bringing complaints against their governments for not complying with their international obligations.
The right to an effective remedy when rights are violated is itself a right expressly guaranteed by most international human rights instruments. The international guarantee of a remedy implies that a state that has violated a human right has the primary duty to afford an effective remedy to the victim. International tribunals and supervisory bodies play a subsidiary role; they only come into play when the state fails to afford required redress. The role of these international bodies, however, is important in protecting the integrity and consistency of the human rights system. Absence of an effective remedy can create a climate of impunity, particularly when states intentionally and constantly deny remedies.
The Universal Declaration states in Article 8 that ‘everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law’.
The right to an effective remedy is enshrined in several ICCPR articles. Article 2(3) provides the most highly elaborated general provision in human rights law. Moreover, one finds specific remedies in the ICCPR such as Article 6(4) on the right to apply for pardon, amnesty and commutation of the death sentence. Article 9(3) and (4) defines the right to habeas corpus and judicial review, Article 13 provides a remedy against expulsion, Article 14 guarantees fair trial and Article 14(5) defines the right to review of conviction and sentence. Both general and specific provisions on effective remedy can be found under other UN Conventions, such as Articles 2, 2(c) and 3 CEDAW; Article 6 CERD; Articles 2 and 3 ICESCR; Articles 12 and 13 CAT; Articles 2(2), 3, 4, 19, 20, 32 and 37(d) CRC; and Articles 18, 19, 22 and 23 CMW.
The ACHPR has several provisions on remedies. Article 7 guarantees every individual the right to have his or her cause heard. Article 21 refers to the right to ‘adequate compensation’ in regard to ‘the spoliation of resources of a dispossessed people’. Article 26 imposes a duty on states parties to guarantee the independence of the courts and allow the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by the African Charter. The Protocol to the African Charter on the establishment of an African Court on Human and Peoples’ Rights also affords effective remedies. Article 27 of the Protocol states that ‘If the Court finds that there has been violation of a human or peoples’ right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation’. This provision is broader than all the current mandates to afford remedies to victims of human rights abuse. The ECHR defines the right to an effective remedy in Article 13, habeas corpus in Article 5 (4) and the right to appeal in Article 2 Protocol No. 7. Another European standard is the European Social Charter – guaranteeing the right to an effective remedy under Article 47. The ACHR recognises the right to judicial protection in Article 25.
Except for Article 25 ACHR, which guarantees a right to recourse to ‘courts and tribunals’, other human rights Conventions do not require that the remedy be ‘judicial’. Article 2(3)(b) ICCPR, for instance, leaves a considerable margin of appreciation to each state by accepting ‘judicial, administrative or legislative authorities’ or ‘any other authority provided for by the legal system’ of the state. The same applies to the ECHR and the ACHPR.
In addition to the main human rights Conventions, there are declarations, resolutions and other non-treaty texts that address the right to an effective remedy, such as the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which contains broad guarantees for those who suffer pecuniary losses, physical or mental harm (UNGA Resolution 40/34). Victims are entitled to redress and to be informed of their right to seek redress (UNGA Resolution 60/147).
The main purpose of remedial justice is to correct the harm done to a victim. Corrective justice generally aims at restitution or compensation for loss in order to help make things better for the victims and deter violators from engaging in future misconduct. The practice of supervisory bodies in awarding compensatory damages varies considerably. UN supervisory bodies, such as the Human Rights Committee, recommend sometimes that states pay compensation or afford other remedies, but they never specify amounts that may be due or other forms of redress. Regional human rights bodies, such as the European and Inter-American Courts, have the power to designate remedies and compensation that the state must comply with.
At the United Nations level, the Human Rights Committee has indicated in individual cases that a state that has engaged in human rights violations must undertake to investigate the facts, take appropriate action, and bring to justice those found responsible for the violations. The legal obligation placed on states to provide effective remedies has been uniformly spelt out in General Comment 31. The Comment notes the importance of individual reparation, stating, ‘where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices.’ Guarantees of non-repetition are an important aspect of the Committee’s approach to remedies; it frequently calls upon states to take measures in order for similar violations not to occur in the future (see, e.g., J.D. Herrera Rubio v. Colombia). Moreover, in a series of prisoner cases involving Jamaica and Trinidad and Tobago, the Committee insisted that the applicants get an effective remedy and suggested suitable remedies such as a) release; b) further measures of clemency; c) payment of compensation; d) improved conditions of confinement; e) medical treatment; and f) commutation of the sentence (e.g., Thomas v. Jamaica, LaVenda v. Trinidad and Tobago, Leslie v. Jamaica and Matthews v. Trinidad). In Rajapakse v. Sri Lanka the Committee reaffirmed that expedition and effectiveness of remedies are particularly important in the adjudication of cases involving torture. In addition, the Committee states in General Comment 29 that even though the right to an effective remedy is not mentioned in the list of non-derogable provisions in Article 4, paragraph 2, ‘the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is ‘effective’ during a state of emergency. A Covenant right does not necessarily have to be violated before the obligation to provide an effective remedy activates. It suffices that it is established that that the complainant has a claim ‘suitably well-founded to be arguable under the Covenant’ (Kazantzis v. Cyprus).
At the regional level, the European Court has interpreted its mandate narrowly with regard to remedies and has applied its powers in a restrictive fashion. The Court, for instance, has regularly stated that it is limited to financial compensation and is not empowered to order other remedial measures. It rejected requests, for instance, that the state should be required to refrain from corporal punishment of children or to take steps to prevent similar breaches in the future (see, e.g., Campbell and Cosans v. The United Kingdom). It also refused to insist that a state judged to have wrongfully expelled an alien allow the victim to rejoin his family (see, e.g., Mehemi v. France). Recently, however, the Court seems to be indicating that a state may be required implicitly to take such steps (see, e.g., Papamichalopoulos et al. v. Greece). See also Wainwright v. The United Kingdom where the Court established that prisoners subjected to unlawful searches lacked an effective remedy because there was no tort or other action for invasion of privacy.
Both the Inter-American Commission and Court have recommended remedies. The Inter-American Commission has in recent years negotiated friendly settlements involving wide-ranging remedies and large compensatory damages. In addition or as an alternative to monetary compensation, the Commission has recommended reform of court systems, investigation, prosecution and punishment of violators, adoption or modification of legislation and guarantees for the safety of witnesses. Of all the supervisory mechanisms, the Inter-American Court has made the broadest use of its jurisdiction concerning remedies. It has awarded pecuniary and non-pecuniary damages, granting monetary and non-monetary remedies. Moreover, the Court has been innovative in controlling all aspects of the awards, including setting up trust funds and maintaining cases open until the awards on remedies have been fully implemented.
The African Commission has made specific recommendations on remedies in several cases, including demanding the release of persons wrongfully imprisoned and repeal of laws found to be in violation of the Charter. The Commission has not discussed the scope of its remedial powers but, in a case against Nigeria, it indicated it would follow up to ensure state compliance with its recommendations (Constitutional Rights Project (in respect of Zamani Lakwot and 6 Others) v. Nigeria, Communication 87/93). The Commission has recently found Tanzania in breach of Article 7 after a judge refused to hear a case for purely discretionary reasons (Women’s Legal Aid Center (on behalf of Sophia Moto) v. Tanzania, Communication 243/2001). The Commission stressed the need for judicial procedures to enforce Charter rights, not to arbitrarily frustrate them. Also of concern to the Commission was the fact that the same trial judge presided over and dismissed a subsequent appeal.