Right to an Effective Remedy: Normative Framework under International Law

Right to an Effective Remedy:
Normative Framework under
International Law
Expert consultation of the UN Special Rapporteur on
trafficking in persons, especially women and children
22 November 2010
Bratislava, Slovakia
International Human Rights Treaties
 Art 2: Principle of non-discrimination
Art 6: The right to recognition as a person before the
 Art 7: The right to equal protection
 Art 8: The right to an effective remedy
“Everyone has the right to effective remedy by the
competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by
the law.”
International Human Rights Treaties
 This principle of equality and non- discrimination
as well as the right to an effective remedy
enunciated in the UDHR has been reinforced and
expanded by several and subsequent binding
treaties namely: International Covenant on Civil
and Political Rights (ICCPR: 1966).
International Human Rights Treaties
 Art 2(3): The right to an effective remedy
States are obliged to ensure:
 Victims of human rights violations have an effective
 Victims have the right to have their claims determined
by competent judicial, administrative or legislative
authorities, or any other competent authority;
 The competent authorities enforce such remedies.
International Human Rights Treaties
 Art 14(1): Equality before the law
“All persons shall be equal before the courts and tribunals.
In the determination of any criminal charge against him, or
of his rights and obligations in a suit at law, everyone shall
be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law”.
International Human Rights Treaties
 Art 14(1): The right to “redress” and to “an enforceable right to
fair and adequate compensation, including the means for as full
rehabilitation as possible”.
 Art 39: States obliged to “promote physical and psychological
recovery and social reintegration of a child victim of: any form of
neglect, exploitation, or abuse; torture or any other form of cruel,
inhuman or degrading treatment or punishment; or armed
International Human Rights Treaties
 Art 6: States obliged to ensure “effective protection and
remedies, through the competent national tribunals and
other State institutions”, as well as “the right to seek from
such tribunals just and adequate reparation or satisfaction
for any damage suffered” as a result of racial
CEDAW: While no specific references:
 Art 2: Equality of men and women
States obliged to “…ensure through competent national
tribunals and other public institutions the effective
protection of women against any act of discrimination”.
Soft law instruments
UN Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power 1985:
 Focuses on victims of domestic crimes committed
by individuals
 Affirms the rights to: access to justice and fair
treatment; restitution; compensation; necessary
material, medical, psychological and social
Soft law instruments
Basic Principles and Guideline on the Right to a
Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law
 Affirms the victim’s rights to:
 Equal and effective access to justice
 Adequate, effective and prompt reparation for harm
 Access to relevant information concerning violations
and reparation mechanisms.
Soft law instruments
 The Basic Principles and Guidelines elaborate the content
of “reparation”:
 Restitution – eg. restoration of liberty, enjoyment of
human rights, identity, family life and citizenship,
return to one’s place of residence.
 Compensation for any economically assessable damage
 Rehabilitation – Medical, psychological, legal and
social services
 Satisfaction – eg. Cessation of violations, judicial and
administrative sanctions against perpetrators.
 Guarantees of non-repetition – eg. Investigation,
prosecution and sanctioning of perpetrators, human
rights education
The Right to an Effective Remedy
International human rights law clearly recognizes:
 Substantive rights to remedies
 Adequate reparations, such as restitution,
rehabilitation, compensation, satisfaction and
guarantees of non-repetition
 Procedural rights of access to remedies – eg:
 The right to information
 The right to legal and other assistance necessary
to claim remedies