number of treaties40 and is designed to combat impunity and to ensure that
rights are practical and effective and not rendered worthless and insignificant
because they can be ignored.
37. Where a human right is being violated, or an aggrieved individual considers,
with arguable grounds, a right is being violated, that person must be able to
challenge the alleged violation. If it is established that there has been a breach
that person must be granted an appropriate resolution.41 This remedy may or
may not involve compensation.
38. As the Special Rapporteur on the Independence of Judges and Lawyers has
noted, while judicial protection applies to any right, the right to an effective
remedy applies only to those protected under the constitution or legislation of
the State, or international treaties. For example, Article 2(3) ICCPR provides a
remedy for those rights protected under the ICCPR.42
39. The right to an effective remedy requires the following:
The remedy must be accessible and effective.43 An effective remedy
requires adequate measures of reparation for the victim. 44
It should be ‘appropriately adapted’ to meet the needs of specific categories
of persons.45
States should establish appropriate domestic mechanism to bring claims.46
It should provide a reasonable prospect of success. 47
40. While the specific nature of the remedy depends on the nature of the rights
violations, there is a growing recognition that an effective remedy presupposes
a judicial procedure and determination.48 The UN Human Rights Committee
has held that ‘purely disciplinary and administrative remedies cannot be
deemed to constitute adequate and effective remedies within the meaning of
article 2, paragraph 3, of the Covenant, in the event of particularly serious
violations of human rights’.49 The requirement of a judicial process extends to
40
Article 8, UDHR; Article 2(3), ICCPR; Article 23, Arab Charter; Article 13, ECHR, Article 13 CAT,
Article 6 ICERD; Article 2(c) CEDAW; Article 25 ACHR. Article 32, Palestinian Basic Law.
41 Human Rights Committee, General Comment No.31, CCPR/C/21/Rev.1/Add/13 (2004), para 15.
42 Report of the Special Rapporteur on the Independence of Judges and Lawyers, A/HRC/8/4, 13 May
2008, para 19. Article 14 CAT.
43 Human Rights Committee, General Comment No.31, CCPR/C/21/Rev.1/Add/13 (2004), para 15.
44 UN Human Rights Committee, Communication No. 847/1999, Blazek et al v Czech Republic,
CCPR/C/72/D/857/1999. European Court of Human Rights, Lawless v Ireland, 1st July 1961; X v
Sweden, European Court of Human Rights, 2 Mar 1964; .
45 Human Rights Committee, General Comment No.31, CCPR/C/21/Rev.1/Add/13 (2004), para 15.
46 Human Rights Committee, General Comment No.31, CCPR/C/21/Rev.1/Add/13 (2004), para 15;
General Comment No.20, 44th Session 1992, para 14.
47 E.g. African Commission, Communication 155/96, The Social and Economic Rights Action Center
and the Center for Economic and Social Rights v Nigeria, 27 October 2001; European Court of Human
Rights Silver v. United Kingdom, 25 March 1983, para. 113(b); American Court of Human Rights,
Mayagna (Sumo) Awas Tigni Community v Nicaragua, Judgment, 31 August 2001, para 112.
48 Article 7 ACHPR; Article 47 of the Charter of Fundamental Rights of the European Union guarantees
the right to an effective remedy before a tribunal in the case of violations of rights and freedoms
protected by the law of the Union.
49 Communication 563/1993, Nydia Erika Bautista v Colombia, CCPR/C/55/D/563/1993, paragraph
8(2). European Court of Human Rights, De Souza Ribeiro v. France, Judgment (Grand Chamber), 13
29
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